Contents
Chapter 1—Introduction 1
Part 1‑1—Preliminary 1
1............ Short title............................................................................................. 1
2............ Commencement................................................................................... 1
3............ Identifying defined terms.................................................................... 2
4............ Application of the Criminal Code....................................................... 3
Part 1‑2—Objects 4
5............ Principal objects.................................................................................. 4
Part 1‑3—Outline of this Act 5
6............ General................................................................................................ 5
7............ The confiscation scheme (Chapter 2).................................................. 5
8............ Information gathering (Chapter 3)....................................................... 6
9............ Administration (Chapter 4)................................................................. 6
10.......... Miscellaneous (Chapter 5).................................................................. 7
11.......... Interpreting this Act (Chapter 6)......................................................... 7
Part 1‑4—Application 8
Division 1—General 8
12.......... Act to bind Crown.............................................................................. 8
13.......... Act to apply both within and outside Australia................................... 8
14.......... Application.......................................................................................... 8
14A....... Concurrent operation of State and Territory laws................................ 8
Division 2—The national unexplained wealth provisions 10
Subdivision A—General 10
14B....... Constitutional basis of the national unexplained wealth provisions... 10
14C....... What is a participating State?............................................................ 14
14D....... Meaning of unexplained wealth........................................................ 19
14E........ Meaning of information gathering.................................................... 19
14F........ When a non‑participating State is a cooperating State....................... 20
Subdivision B—Rollback of particular express amendments 21
14G....... Effect of rollback by participating States on unexplained wealth proceedings 21
14H....... Effect of rollback by self‑governing Territories on unexplained wealth proceedings 23
14J........ Effect of rollback by participating States on action taken under State reference information gathering provisions 25
14K....... Effect of rollback by self‑governing Territories on action taken under State reference information gathering provisions.......................................................................................................... 26
Subdivision C—Interaction of the national unexplained wealth provisions and orders with State and Territory laws and orders 27
14L........ Concurrent operation of State and Territory laws with national unexplained wealth provisions 27
Subdivision D—Other matters 30
14M...... Information gathering by participating States and self‑governing Territories 30
14N....... Transitional, application and saving provisions relating to the national cooperative scheme on unexplained wealth.......................................................................................................... 30
Chapter 2—The confiscation scheme 31
Part 2‑1A—Freezing orders 31
15A....... Simplified outline of this Part............................................................ 31
Division 1—Making freezing orders 31
15B....... Making freezing orders..................................................................... 31
Division 2—How freezing orders are obtained 33
15C....... Affidavit supporting application made in person............................... 33
15D....... Applying for freezing orders by telephone or other electronic means 34
15E........ Making order by telephone etc.......................................................... 34
15F........ Unsigned freezing orders in court proceedings................................. 36
15FA..... Prohibition of publication of evidence—proceedings for freezing orders 36
15G....... Offence for making false statements in applications.......................... 37
15H....... Offences relating to orders made under section 15E......................... 37
Division 3—Giving effect to freezing orders 39
15J........ Service of freezing order etc. on financial institution and account‑holder 39
15K....... Freezing order does not prevent withdrawal to enable financial institution to meet its liabilities 39
15L........ Offence for contravening freezing orders.......................................... 39
15M...... Protection from suits etc. for those complying with orders............... 40
Division 4—Duration of freezing orders 41
15N....... When a freezing order is in force...................................................... 41
15P........ Order extending a freezing order....................................................... 41
Division 5—Varying scope of freezing orders 43
15Q....... Magistrate may vary freezing order to allow withdrawal to meet reasonable expenses 43
Division 6—Revoking freezing orders 45
15R....... Application to revoke a freezing order.............................................. 45
15S........ Notice of revocation of a freezing order............................................ 45
Part 2‑1—Restraining orders 47
16.......... Simplified outline of this Part............................................................ 47
Division 1—Making restraining orders 47
17.......... Restraining orders—people convicted of or charged with indictable offences 47
18.......... Restraining orders—people suspected of committing serious offences 49
19.......... Restraining orders—property suspected of being proceeds of indictable offences etc. 52
20.......... Restraining orders—people suspected of deriving literary proceeds from indictable offences etc. 53
20A....... Restraining orders—unexplained wealth........................................... 56
21.......... Refusal to make an order for failure to give undertaking................... 59
22.......... Restraining orders must only relate to one suspect............................ 59
23.......... Conditions on restraining orders....................................................... 59
24.......... Allowance for expenses.................................................................... 59
24A....... Excluding property from or revoking restraining orders in certain cases when expenses are not allowed 61
Division 2—How restraining orders are obtained 63
25.......... Proceeds of crime authority may apply for a restraining order.......... 63
26.......... Notice of application......................................................................... 63
27.......... Proceeds of crime authority may choose under which section it applies for a restraining order 64
28.......... Prejudice to investigations................................................................. 64
28A....... Prohibition of publication of evidence—proceedings for restraining orders 64
Division 3—Excluding property from restraining orders 66
29.......... Excluding property from certain restraining orders........................... 66
29A....... Excluding property from a restraining order made under section 20A 68
30.......... Application to exclude property from a restraining order before restraining order has been made 68
31.......... Application to exclude property from a restraining order after restraining order has been made 69
32.......... Application not to be heard unless responsible authority has had reasonable opportunity to conduct an examination.......................................................................................................... 70
Division 4—Giving effect to restraining orders 71
33.......... Notice of a restraining order.............................................................. 71
34.......... Registering restraining orders........................................................... 71
35.......... Notifying registration authorities of exclusions from or variations to restraining orders 72
36.......... Court may set aside a disposition contravening a restraining order... 72
37.......... Contravening restraining orders........................................................ 73
Division 5—Further orders 75
38.......... Court may order Official Trustee to take custody and control of property 75
39.......... Ancillary orders................................................................................ 75
39A....... Privilege against self incrimination etc. does not apply..................... 78
39B....... Application to revoke ancillary order................................................ 78
40.......... Contravening ancillary orders relating to foreign property................ 79
Division 6—Duration of restraining orders 80
41.......... When a restraining order is in force.................................................. 80
42.......... Application to revoke a restraining order.......................................... 80
43.......... Notice of revocation of a restraining order........................................ 81
44.......... Giving security etc. to revoke etc. a restraining order........................ 81
45.......... Cessation of certain restraining orders.............................................. 82
45A....... Cessation of restraining orders relating to unexplained wealth.......... 85
Part 2‑2—Forfeiture orders 89
46.......... Simplified outline of this Part............................................................ 89
Division 1—Making forfeiture orders 89
47.......... Forfeiture orders—conduct constituting serious offences................. 89
48.......... Forfeiture orders—convictions for indictable offences..................... 90
49.......... Forfeiture orders—property suspected of being proceeds of indictable offences etc. 91
50.......... Existence of other confiscation orders............................................... 92
51.......... Acquittals do not affect forfeiture orders under section 47 or 49...... 93
52.......... Making of forfeiture order if person has absconded......................... 93
Division 2—Other relevant matters when a court is considering whether to make forfeiture orders 94
54.......... Presumption in certain cases that property is an instrument of an offence 94
55.......... Forfeiture orders can extend to other interests in property................ 94
56.......... Forfeiture orders must specify the value of forfeited property.......... 96
57.......... Court may make orders relating to buying back forfeited property... 96
57A....... Applying for an order under section 57............................................ 98
58.......... The court may also make supporting directions.............................. 100
Division 3—How forfeiture orders are obtained 101
59.......... Proceeds of crime authority may apply for a forfeiture order.......... 101
60.......... Additional application for a forfeiture order.................................... 101
61.......... Notice of application....................................................................... 102
62.......... Amending an application................................................................. 102
63.......... Court may dispense with notice requirements if person has absconded 103
64.......... Procedure on application................................................................. 104
65.......... Applications to courts before which persons are convicted............. 104
Division 4—Effect of forfeiture orders 105
66.......... What property is forfeited and when—general rule......................... 105
67.......... First exception—registrable property.............................................. 105
68.......... Second exception—if a joint owner dies before the order was made 106
68A....... Third exception—property located outside Australia...................... 106
69.......... When can the Commonwealth begin dealing with forfeited property? 107
70.......... How must the Commonwealth deal with forfeited property?.......... 108
71.......... Dealings with forfeited property..................................................... 109
Division 4A—Controlled property 110
71A....... Official Trustee may take custody and control of forfeited property 110
Division 5—Reducing the effect of forfeiture orders 111
Subdivision A—Relieving hardship 111
72.......... Relieving certain dependants from hardship.................................... 111
Subdivision B—Excluding property from a forfeiture order 112
73.......... Making exclusion orders................................................................. 112
74.......... Applying for exclusion orders........................................................ 113
75.......... Giving notice of matters relevant to an application.......................... 114
76.......... When an application can be heard................................................... 114
Subdivision C—Compensating for proportion of property not derived or realised from commission of any offence 114
77.......... Making compensation orders.......................................................... 114
78.......... Application for compensation orders.............................................. 115
79.......... Giving notice of matters relevant to an application.......................... 116
79A....... When an application can be heard................................................... 117
Division 6—The effect on forfeiture orders of acquittals and quashing of convictions 118
80.......... Forfeiture order made under section 47 or 49 unaffected by acquittal or quashing of conviction 118
81.......... Discharge of forfeiture order made under section 48 on quashing of conviction 118
82.......... Notice of application for confirmation of forfeiture order............... 119
83.......... Procedure on application for confirmation of forfeiture order......... 119
84.......... Court may confirm forfeiture order................................................. 120
85.......... Effect of court’s decision on confirmation of forfeiture order......... 120
86.......... Official Trustee must not deal with forfeited property before the court decides on confirmation of forfeiture order........................................................................................................ 121
Division 7—Miscellaneous 122
87.......... Giving notice if a forfeiture order is discharged on appeal or by quashing of a conviction 122
88.......... Returning property etc. following the discharge of a forfeiture order 122
89.......... Person with interest in forfeited property may buy back the interest 123
90.......... Buying out other interests in forfeited property............................... 124
Part 2‑3—Forfeiture on conviction of a serious offence 126
91.......... Simplified outline of this Part.......................................................... 126
Division 1—Forfeiture on conviction of a serious offence 126
92.......... Forfeiting restrained property without a forfeiture order if a person has been convicted of a serious offence 126
92A....... Notice of date of forfeiture under this Part, etc................................ 128
93.......... Making an extension order extending the period before property is forfeited 128
94.......... Excluding property from forfeiture under this Part......................... 129
94A....... Compensating for proportion of property not derived or realised from commission of any offence 130
95.......... Court may declare that property has been forfeited under this Part. 132
Division 2—Effect of forfeiture on conviction of a serious offence 134
96.......... When is property forfeited—general rule........................................ 134
97.......... First exception—registrable property.............................................. 134
98.......... Second exception—if a joint owner dies......................................... 135
98A....... Third exception—property located outside Australia...................... 135
99.......... When can the Commonwealth begin dealing with forfeited property? 136
100........ How must forfeited property be dealt with?.................................... 138
101........ Minister may give supporting directions......................................... 139
Division 2A—Controlled property 140
101A..... Official Trustee may take custody and control of forfeited property 140
Division 3—Recovery of forfeited property 141
102........ Court may make orders relating to transfer of forfeited property etc. 141
103........ Court may make orders relating to buying back forfeited property. 142
104........ Applying for an order under section 102........................................ 144
104A..... Applying for an order under section 103........................................ 145
105........ Person with interest in forfeited property may buy back the interest 146
106........ Buying out other interests in forfeited property............................... 147
Division 4—The effect on forfeiture of convictions being quashed 149
107........ The effect on forfeiture of convictions being quashed..................... 149
108........ Notice of application for confirmation of forfeiture......................... 149
109........ Procedure on application for confirmation of forfeiture.................. 150
110........ Court may confirm forfeiture.......................................................... 150
111........ Effect of court’s decision on confirmation of forfeiture.................. 151
112........ Official Trustee must not deal with forfeited property before the court decides on confirmation of forfeiture 151
113........ Giving notice if forfeiture ceases to have effect on quashing of a conviction 152
114........ Returning property etc. following forfeiture ceasing to have effect. 152
Part 2‑4—Pecuniary penalty orders 154
115........ Simplified outline of this Part.......................................................... 154
Division 1—Making pecuniary penalty orders 154
116........ Making pecuniary penalty orders.................................................... 154
117........ Pecuniary penalty orders made in relation to serious offence convictions 155
118........ Making of pecuniary penalty order if person has absconded.......... 155
119........ Ancillary orders.............................................................................. 156
120........ Acquittals do not affect pecuniary penalty orders............................ 156
Division 2—Penalty amounts 157
Subdivision A—General 157
121........ Determining penalty amounts.......................................................... 157
Subdivision B—The value of benefits derived from the commission of an offence 158
122........ Evidence the court is to consider..................................................... 158
123........ Value of benefits derived—non‑serious offences........................... 159
124........ Value of benefits derived—serious offences................................... 160
125........ Value of benefits may be as at time of assessment.......................... 161
126........ Matters that do not reduce the value of benefits.............................. 162
127........ Benefits already the subject of pecuniary penalty............................ 162
128........ Property under a person’s effective control..................................... 162
129........ Effect of property vesting in an insolvency trustee.......................... 162
Subdivision C—Reducing penalty amounts 163
130........ Reducing penalty amounts to take account of forfeiture and proposed forfeiture 163
131........ Reducing penalty amounts to take account of tax paid.................... 163
132........ Reducing penalty amounts to take account of fines etc.................... 164
Subdivision D—Varying pecuniary penalty orders to increase penalty amounts 164
133........ Varying pecuniary penalty orders to increase penalty amounts....... 164
Division 3—How pecuniary penalty orders are obtained 167
134........ Proceeds of crime authority may apply for a pecuniary penalty order 167
135........ Additional application for a pecuniary penalty order....................... 168
136........ Notice of application....................................................................... 168
137........ Amendment of application.............................................................. 169
138........ Procedure on application................................................................. 169
139........ Applications to courts before which persons are convicted............. 169
Division 4—Enforcement of pecuniary penalty orders 171
140........ Enforcement of pecuniary penalty orders........................................ 171
141........ Property subject to a person’s effective control............................... 171
142........ Charge on property subject to restraining order.............................. 172
143........ Charges may be registered.............................................................. 174
144........ Penalty amounts exceeding the court’s jurisdiction......................... 175
Division 5—The effect on pecuniary penalty orders of convictions being quashed 176
145........ Pecuniary penalty order unaffected if not made in relation to a conviction 176
146........ Discharge of pecuniary penalty order if made in relation to a conviction 176
147........ Notice of application for confirmation or variation of pecuniary penalty order 177
148........ Procedure on application for confirmation or variation of pecuniary penalty order 177
149........ Court may confirm pecuniary penalty order.................................... 177
149A..... Court may vary pecuniary penalty order......................................... 178
150........ Effect of court’s decision on confirmation or variation of pecuniary penalty order 178
Part 2‑5—Literary proceeds orders 180
151........ Simplified outline of this Part.......................................................... 180
Division 1—Making literary proceeds orders 180
152........ Making literary proceeds orders...................................................... 180
153........ Meaning of literary proceeds.......................................................... 181
154........ Matters taken into account in deciding whether to make literary proceeds orders 182
155........ Additional literary proceeds orders................................................. 182
156........ Ancillary orders.............................................................................. 182
157........ Acquittals do not affect literary proceeds orders............................. 183
Division 2—Literary proceeds amounts 184
158........ Determining literary proceeds amounts........................................... 184
159........ Deductions from literary proceeds amounts.................................... 184
160........ Reducing literary proceeds amounts to take account of tax paid...... 185
161........ Varying literary proceeds orders to increase literary proceeds amounts 185
Division 3—How literary proceeds orders are obtained 187
162........ Proceeds of crime authority may apply for a literary proceeds order 187
163........ Notice of application....................................................................... 187
164........ Amendment of application.............................................................. 187
165........ Procedure on application................................................................. 188
166........ Applications to courts before which persons are convicted............. 188
Division 4—Enforcement of literary proceeds orders 189
167........ Enforcement of literary proceeds orders.......................................... 189
168........ Property subject to a person’s effective control............................... 189
169........ Charge on property subject to restraining order.............................. 190
170........ Charges may be registered.............................................................. 192
171........ Literary proceeds amounts exceeding the court’s jurisdiction......... 192
Division 5—The effect on literary proceeds orders of convictions being quashed 194
172........ Literary proceeds order unaffected if not made in relation to a conviction 194
173........ Discharge of literary proceeds order if made in relation to a conviction 194
174........ Notice of application for confirmation of literary proceeds order.... 194
175........ Procedure on application for confirmation of literary proceeds order 195
176........ Court may confirm literary proceeds order...................................... 195
177........ Effect of court’s decision on confirmation of literary proceeds order 195
Division 6—Literary proceeds orders covering future literary proceeds 196
178........ Literary proceeds orders can cover future literary proceeds............ 196
179........ Enforcement of literary proceeds orders in relation to future literary proceeds 196
Part 2‑6—Unexplained wealth orders 198
179A..... Simplified outline of this Part.......................................................... 198
Division 1—Making unexplained wealth orders 198
179B..... Making a preliminary unexplained wealth order requiring a person to appear 198
179C..... Application to revoke a preliminary unexplained wealth order........ 200
179CA.. Notice and procedure on application to revoke preliminary unexplained wealth order 201
179D..... Notice of revocation of a preliminary unexplained wealth order..... 201
179E...... Making an unexplained wealth order.............................................. 201
179EA... Refusal to make an order for failure to give undertaking................. 203
179EB... Costs............................................................................................... 203
179F...... Ancillary orders.............................................................................. 203
Division 2—Unexplained wealth amounts 205
179G..... Determining unexplained wealth amounts....................................... 205
179H..... Effect of property vesting in an insolvency trustee.......................... 206
179J...... Reducing unexplained wealth amounts to take account of forfeiture, pecuniary penalties etc. 206
179K..... Varying unexplained wealth orders to increase amounts................. 207
179L...... Relieving certain dependants from hardship.................................... 207
Division 3—How unexplained wealth orders are obtained 209
179M.... Proceeds of crime authority may apply for an unexplained wealth order 209
179N..... Notice of application....................................................................... 209
179P...... Additional application for an unexplained wealth order.................. 210
179Q..... Procedure on application and other notice requirements.................. 210
Division 4—Enforcement of unexplained wealth orders 212
179R..... Enforcement of an unexplained wealth order.................................. 212
179S...... Property subject to a person’s effective control............................... 212
179SA... Charge on property subject to restraining order.............................. 213
179SB... Charges may be registered.............................................................. 215
179T...... Amounts exceeding the court’s jurisdiction.................................... 216
Division 5—Oversight 217
179U..... Parliamentary supervision............................................................... 217
Chapter 3—Information gathering 219
Part 3‑1—Examinations 219
Division 1—Examination orders 219
180........ Examination orders relating to restraining orders............................ 219
180A..... Examination orders relating to applications for exclusion from forfeiture 219
180B..... Examination orders relating to applications for compensation......... 220
180C..... Examination orders relating to applications under section 102........ 220
180D..... Examination orders relating to enforcement of confiscation orders. 221
180E...... Examination orders relating to restraining orders revoked under section 44 221
181........ Examination orders relating to applications relating to quashing of convictions 222
181A..... Examination orders relating to applications under section 57A....... 222
181B..... Examination orders relating to applications under section 104A..... 223
182........ Applications for examination orders............................................... 223
Division 2—Examination notices 224
183........ Examination notices........................................................................ 224
184........ Additional examination notices....................................................... 225
185........ Form and content of examination notices........................................ 225
Division 3—Conducting examinations 226
186........ Time and place of examination........................................................ 226
187........ Requirements made of person examined......................................... 226
188........ Examination to take place in private................................................ 228
189........ Role of the examinee’s lawyer........................................................ 228
190........ Examination by video link or telephone.......................................... 229
191........ Record of examination.................................................................... 230
192........ Questions of law............................................................................. 231
193........ Approved examiner may restrict publication of certain material...... 231
194........ Protection of approved examiner etc............................................... 232
Division 4—Offences 233
195........ Failing to attend an examination...................................................... 233
196........ Offences relating to appearance at an examination.......................... 233
197........ Privileged information..................................................................... 234
197A..... Giving false or misleading answers or documents.......................... 235
198........ Admissibility of answers and documents........................................ 235
199........ Unauthorised presence at an examination........................................ 236
200........ Breaching conditions on which records of statements are provided 236
201........ Breaching directions preventing or restricting publication............... 236
Part 3‑2—Production orders 237
202........ Making production orders............................................................... 237
203........ Contents of production orders......................................................... 241
204........ Powers under production orders..................................................... 242
205........ Retaining produced documents....................................................... 242
206........ Privilege against self‑incrimination etc. does not apply................... 242
207........ Varying production orders.............................................................. 243
208........ Jurisdiction of magistrates............................................................... 243
209........ Making false statements in applications.......................................... 243
210........ Disclosing existence or nature of production orders....................... 244
211........ Failing to comply with a production order...................................... 245
212........ Destroying etc. a document subject to a production order............... 246
Part 3‑3—Notices to financial institutions 247
213........ Giving notices to financial institutions............................................ 247
214........ Contents of notices to financial institutions..................................... 248
215........ Protection from suits etc. for those complying with notices............ 249
216........ Making false statements in notices.................................................. 250
217........ Disclosing existence or nature of notice.......................................... 250
218........ Failing to comply with a notice....................................................... 250
Part 3‑4—Monitoring orders 252
219........ Making monitoring orders.............................................................. 252
220........ Contents of monitoring orders........................................................ 253
221........ Protection from suits etc. for those complying with orders............. 253
222........ Making false statements in applications.......................................... 254
223........ Disclosing existence or operation of monitoring order.................... 254
224........ Failing to comply with monitoring order......................................... 256
Part 3‑5—Search and seizure 257
Division 1—Search warrants 257
Subdivision A—Issuing search warrants 257
225........ Issuing a search warrant.................................................................. 257
226........ Additional contents of the information............................................ 257
227........ Contents of warrants....................................................................... 258
228........ The things that are authorised by a search warrant.......................... 259
Subdivision B—Applying for search warrants by telephone or other electronic means 260
229........ Applying for search warrants by telephone or other electronic means 260
230........ Issuing warrants by telephone etc................................................... 261
231........ Unsigned telephone warrants in court proceedings......................... 262
232........ Offence for stating incorrect names in telephone warrants.............. 262
233........ Offence for unauthorised form of warrant...................................... 262
234........ Offence for execution etc. of unauthorised form of warrant............ 263
235........ Offence for giving unexecuted form of warrant.............................. 263
Subdivision C—Executing search warrants 264
236........ Warrants that must be executed only during particular hours.......... 264
237........ Restrictions on personal searches.................................................... 264
238........ Availability of assistance and use of force in executing a warrant... 264
239........ Announcement before entry............................................................ 265
240........ Details of warrant to be given to occupier etc.................................. 265
241........ Occupier entitled to be present during search.................................. 266
242........ Specific powers available to officers executing the warrant............ 266
243........ Use of equipment to examine or process things.............................. 267
244........ Moving things to another place for examination or processing....... 267
245........ Use of electronic equipment at premises......................................... 268
246........ Person with knowledge of a computer or a computer system to assist access etc. 269
247........ Securing electronic equipment......................................................... 270
248........ Compensation for damage to electronic equipment......................... 271
249........ Copies of seized things to be provided............................................ 272
250........ Providing documents after execution of a search warrant............... 273
Division 2—Stopping and searching conveyances 274
251........ Searches without warrant in emergency situations.......................... 274
252........ How an authorised officer exercises a power under section 251..... 275
Division 3—Dealing with things seized 276
Subdivision A—General requirements 276
253........ Receipts for things seized under warrant......................................... 276
254........ Responsibility for things seized...................................................... 276
255........ Effect of obtaining forfeiture orders................................................ 277
Subdivision B—Things seized as evidence 277
256........ Returning seized things................................................................... 277
257........ Authorised officer may apply for a thing to be retained for a further period 278
258........ Magistrate may order that the thing be retained............................... 279
Subdivision C—Things seized on other grounds 279
259........ Return of seized property to third parties........................................ 279
260........ Return of seized property if applications are not made for restraining orders or forfeiture orders 280
261........ Effect of obtaining restraining orders.............................................. 280
262........ Effect of refusing applications for restraining orders or forfeiture orders 281
Division 4—General 283
263........ Application of Part.......................................................................... 283
264........ Law relating to legal professional privilege not affected.................. 283
265........ Jurisdiction of magistrates............................................................... 283
266........ Offence for making false statements in applications........................ 283
Part 3‑6—Disclosure of information 285
266A..... Disclosure....................................................................................... 285
Chapter 4—Administration 292
Part 4‑1—Powers and duties of the Official Trustee 292
Division 1—Preliminary 292
267........ Property to which the Official Trustee’s powers and duties under this Part apply 292
267AA.. Additional property to which the Official Trustee’s powers under Division 2 apply 292
267AB.. Additional property to which the Official Trustee’s powers under Division 3 apply 293
267A..... Additional property to which the Official Trustee’s powers and duties under Division 3 apply 294
Division 2—Obtaining information about controlled property 295
268........ Access to books.............................................................................. 295
269........ Suspect to assist Official Trustee.................................................... 296
270........ Power to obtain information and evidence...................................... 297
271........ Privilege against self‑incrimination................................................. 299
272........ Offences relating to exercise of powers under section 268 or 269.. 300
273........ Failure to provide information......................................................... 300
274........ Failure of person to attend............................................................... 300
275........ Refusal to be sworn or give evidence etc........................................ 301
275A..... Failure to produce a book................................................................ 302
Division 3—Dealings relating to controlled property 303
276........ Preserving controlled property........................................................ 303
277........ Rights attaching to shares................................................................ 303
278........ Destroying or disposing of property............................................... 303
279........ Notice of proposed destruction or disposal etc................................ 304
280........ Procedure if person objects to proposed destruction or disposal..... 306
281........ Proceeds from sale of property....................................................... 307
281A..... Official Trustee does not acquire any additional proprietary interests in controlled property 308
Division 4—Discharging pecuniary penalty orders and literary proceeds orders 309
282........ Direction by a court to the Official Trustee in relation to certain restraining orders 309
282A..... Direction by a court to the Official Trustee in relation to unexplained wealth orders 310
283........ Court may include further directions etc.......................................... 311
284........ Official Trustee to carry out directions............................................ 312
285........ Official Trustee not to carry out directions during appeal periods... 312
286........ Discharge of pecuniary penalty orders and literary proceeds orders by credits to the Confiscated Assets Account 314
Division 5—Miscellaneous 315
287........ Money not to be paid into the Common Investment Fund.............. 315
288........ Official Trustee’s costs etc.............................................................. 315
289........ Income generated from controlled property..................................... 315
290........ Official Trustee is not personally liable........................................... 316
291........ Indemnification of Official Trustee................................................. 317
Part 4‑2—Legal assistance 318
293........ Payments to legal aid commissions for representing suspects and other persons 318
294........ Disclosure of information to legal aid commissions........................ 319
Part 4‑3—Confiscated Assets Account 320
Division 1—Establishment, crediting and payments out of the Account 320
295........ Establishment of Account............................................................... 320
296........ Credits to the Account..................................................................... 320
297........ Payments out of the Account.......................................................... 323
Division 2—The national cooperative scheme on unexplained wealth 326
297A..... The scheme..................................................................................... 326
297B..... Sharing with foreign countries........................................................ 326
297C..... Sharing with States and Territories................................................. 327
Division 3—Programs for expenditure on crime prevention etc. 331
298........ Programs for expenditure on law enforcement, drug treatment etc.. 331
Division 4—Grants to the States and Territories for crime prevention etc. 332
298A..... Grants to the States and Territories for crime prevention etc........... 332
298B..... Terms and conditions of grants....................................................... 332
298C..... Minister has powers etc. of the Commonwealth............................. 333
298D..... Conferral of powers on the Minister............................................... 333
298E...... Channelling State/Territory grants through the COAG Reform Fund 333
298F...... Debits from the COAG Reform Fund............................................ 334
Part 4‑4—Charges over restrained property to secure certain amounts payable to the Commonwealth 335
302A..... Charges to secure amounts payable under subsection 293(3)......... 335
302B..... When the charge ceases to have effect............................................. 335
302C..... Priority of charge............................................................................ 336
Part 4‑5—Enforcement of interstate orders in certain Territories 337
Division 1—Interstate restraining orders 337
303........ Registration of interstate restraining orders..................................... 337
304........ Effect of registration........................................................................ 338
305........ Duration of registration................................................................... 338
306........ Cancellation of registration.............................................................. 338
307........ Charge on property subject to registered interstate restraining order 339
308........ Powers of Official Trustee in relation to interstate restraining orders 341
Division 2—Interstate forfeiture orders 343
309........ Registration of interstate forfeiture orders....................................... 343
310........ Effect of registration........................................................................ 343
311........ Duration of registration................................................................... 344
312........ Cancellation of registration.............................................................. 344
Division 3—Miscellaneous 345
313........ Interim registration of faxed copies................................................. 345
Chapter 5—Miscellaneous 346
314........ State and Territory courts to have jurisdiction................................. 346
315........ Proceedings are civil, not criminal................................................... 346
315A..... Court may hear multiple applications at same time.......................... 347
315B..... Transfer of responsibility for principal orders and applications...... 347
315C..... Official Trustee may bring proceedings on behalf of the Commonwealth 351
316........ Consent orders................................................................................ 351
317........ Onus and standard of proof............................................................ 352
318........ Proof of certain matters................................................................... 352
318A..... Admissibility in proceedings of statements made at examination by absent witness 353
318B..... Objection to admission of statements made at examination............. 354
319........ Stay of proceedings......................................................................... 356
319A..... Closed court.................................................................................... 358
320........ Effect of the confiscation scheme on sentencing............................. 358
321........ Deferral of sentencing pending determination of confiscation order 358
322........ Appeals........................................................................................... 359
323........ Costs............................................................................................... 361
324........ Powers conferred on judicial officers in their personal capacity...... 361
325........ Effect of a person’s death................................................................ 362
326........ Operation of other laws not affected............................................... 362
327........ Review of operation of Act............................................................. 362
327A..... Review............................................................................................ 363
328........ Regulations..................................................................................... 364
Chapter 6—Interpreting this Act 365
Part 6‑1—Meaning of some important concepts 365
Division 1—Proceeds and instrument of an offence 365
329........ Meaning of proceeds and instrument.............................................. 365
330........ When property becomes, remains and ceases to be proceeds or an instrument 365
Division 2—Convicted and related concepts 369
331........ Meaning of convicted of an offence................................................ 369
332........ Meaning of quashing a conviction of an offence............................ 370
333........ Meaning of conviction day.............................................................. 370
334........ Meaning of abscond....................................................................... 371
Division 3—Other concepts 373
335........ Proceeds jurisdiction....................................................................... 373
336........ Meaning of derived......................................................................... 376
336A..... Meaning of property or wealth being lawfully acquired.................. 376
337........ Meaning of effective control............................................................ 376
337A..... Meaning of foreign indictable offence............................................. 377
337B..... Definition of serious offence—valuation rules................................ 379
Part 6‑2—Dictionary 380
338........ Dictionary....................................................................................... 380
Schedule 1—Information gathering by participating States and self‑governing Territories 406
Part 1—Production orders 406
1............ Making production orders............................................................... 406
2............ Contents of production orders......................................................... 408
3............ Powers under production orders..................................................... 409
4............ Retaining produced documents....................................................... 409
5............ Privilege against self‑incrimination etc. does not apply................... 409
6............ Varying production orders.............................................................. 410
7............ Jurisdiction of magistrates............................................................... 410
8............ Making false statements in applications.......................................... 411
9............ Disclosing existence or nature of production orders....................... 411
10.......... Failing to comply with production orders....................................... 412
11.......... Destroying etc. documents subject to production orders................. 413
Part 2—Notices to financial institutions 414
12.......... Giving notices to financial institutions............................................ 414
13.......... Contents of notices to financial institutions..................................... 415
14.......... Protection from suits etc. for those complying with notices............ 416
15.......... Making false statements in notices.................................................. 417
16.......... Disclosing existence or nature of notices........................................ 417
17.......... Failing to comply with notices........................................................ 417
Part 3—Disclosure of information 419
18.......... Disclosure....................................................................................... 419
19.......... Parliamentary supervision of the operation of this Schedule........... 421
20.......... Reports about the operation of this Schedule.................................. 421
Schedule 2—Transitional, application and saving provisions relating to the national cooperative scheme on unexplained wealth 422
Part 1—General 422
Division 1—Termination of State reference or adoption 422
1............ Effect of termination on things that happened beforehand etc......... 422
2............ Effect of termination on the sharing of certain proceeds of confiscated assets 424
3............ Effect of termination—regulations.................................................. 424
Division 2—Ceasing to be a relevant offence of a State 425
4............ Effect of cessation on things that happen beforehand etc................ 425
5............ Effect of cessation—regulations...................................................... 426
Part 2—Unexplained Wealth Legislation Amendment Act 2018 427
6............ Definitions...................................................................................... 427
7............ Amendments made by Schedule 2 to the amending Act.................. 427
8............ Amendments made by Schedule 4 to the amending Act.................. 428
Endnotes 430
Endnote 1—About the endnotes 430
Endnote 2—Abbreviation key 432
Endnote 3—Legislation history 433
Endnote 4—Amendment history 442
An Act to provide for confiscation of the proceeds of crime, and for other purposes
Chapter 1—Introduction
Part 1‑1—Preliminary
1 Short title
This Act may be cited as the Proceeds of Crime Act 2002.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.
| Commencement information |
| Column 1 | Column 2 | Column 3 |
| Provision(s) | Commencement | Date/Details |
| 1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table | The day on which this Act receives the Royal Assent | 11 October 2002 |
| 2. Sections 3 to 338 | A single day to be fixed by Proclamation, subject to subsection (3) | 1 January 2003 (Gazette 2002, No. GN44) |
Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table is for additional information that is not part of this Act. This information may be included in any published version of this Act.
(3) If a provision covered by item 2 of the table does not commence under subsection (1) within the period of 6 months beginning on the day on which it receives the Royal Assent, it commences on the first day after the end of that period.
3 Identifying defined terms
(1) Many of the terms in this Act are defined in the Dictionary in Chapter 6.
(2) Most of the terms that are defined in the Dictionary in Chapter 6 are identified by an asterisk appearing at the start of the term: as in “*proceeds”. The footnote with the asterisk contains a signpost to the Dictionary.
(3) An asterisk usually identifies the first occurrence of a term in a section (if not divided into subsections), subsection or definition. Later occurrences of the term in the same provision are not usually asterisked.
(4) Terms are not asterisked in headings, notes, examples, explanatory tables, guides, outline provisions or diagrams.
(5) If a term is not identified by an asterisk, disregard that fact in deciding whether or not to apply to that term a definition or other interpretation provision.
(6) The following basic terms used throughout the Act are not identified with an asterisk:
| Terms that are not identified |
| Item | This term: | is defined in: |
| 1 | charged | section 338 |
| 2 | convicted | section 331 |
| 3 | deal | section 338 |
| 4 | derived | section 336 |
| 5 | property | section 338 |
4 Application of the Criminal Code
Chapter 2 of the Criminal Code applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Part 1‑2—Objects
5 Principal objects
The principal objects of this Act are:
(a) to deprive persons of the *proceeds of offences, the *instruments of offences, and *benefits derived from offences, against the laws of the Commonwealth or the *non‑governing Territories; and
(b) to deprive persons of *literary proceeds derived from the commercial exploitation of their notoriety from having committed offences; and
(ba) to deprive persons of *unexplained wealth amounts that the person cannot satisfy a court were not derived or realised, directly or indirectly, from certain offences; and
(c) to punish and deter persons from breaching laws of the Commonwealth or the non‑governing Territories; and
(d) to prevent the reinvestment of proceeds, instruments, benefits, literary proceeds and unexplained wealth amounts in further criminal activities; and
(da) to undermine the profitability of criminal enterprises; and
(e) to enable law enforcement authorities effectively to trace proceeds, instruments, benefits, literary proceeds and unexplained wealth amounts; and
(f) to give effect to Australia’s obligations under the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, and other international agreements relating to proceeds of crime; and
(g) to provide for confiscation orders and restraining orders made in respect of offences against the laws of the States or the *self‑governing Territories to be enforced in the other Territories.
Part 1‑3—Outline of this Act
6 General
This Act establishes a scheme to confiscate the proceeds of crime. It does this by:
(a) setting out in Chapter 2 processes by which confiscation can occur; and
(b) setting out in Chapter 3 ways in which Commonwealth law enforcement agencies can obtain information relevant to these processes; and
(c) setting out in Chapter 4 related administrative matters.
It concludes with miscellaneous provisions and with definitions and other interpretive material.
Note: See also Part IAE of the Crimes Act 1914 (video link evidence).
7 The confiscation scheme (Chapter 2)
Chapter 2 sets out a number of processes relating to confiscation:
(aa) freezing orders limiting withdrawals from accounts with financial institutions before courts decide applications for restraining orders to cover the accounts (see Part 2‑1A); and
(a) restraining orders prohibiting disposal of or dealing with property (see Part 2‑1); and
(b) forfeiture orders under which property is forfeited to the Commonwealth (see Part 2‑2); and
(c) forfeiture of property to the Commonwealth on conviction of a serious offence (see Part 2‑3); and
(d) pecuniary penalty orders requiring payment of amounts based on benefits derived from committing offences (see Part 2‑4); and
(e) literary proceeds orders requiring payment of amounts based on literary proceeds relating to offences (see Part 2‑5); and
(f) unexplained wealth orders requiring payment of unexplained wealth amounts (see Part 2‑6).
8 Information gathering (Chapter 3)
(1) Chapter 3 sets out 5 ways to obtain information:
(a) examining any person about the affairs of people covered by examination orders (see Part 3‑1); and
(b) requiring people, under production orders, to produce property‑tracking documents or make them available for inspection (see Part 3‑2); and
(c) requiring financial institutions to provide information and documents relating to accounts and transactions (see Part 3‑3); and
(d) requiring financial institutions, under monitoring orders, to provide information about transactions over particular periods (see Part 3‑4); and
(e) searching for and seizing tainted property or evidential material, either under search warrants or in relation to conveyances (see Part 3‑5).
(2) Chapter 3 also authorises the disclosure, to certain authorities for certain purposes, of information obtained under that Chapter or certain other provisions (see Part 3‑6).
9 Administration (Chapter 4)
Chapter 4 sets out the following administrative matters:
(a) the powers and duties of the Official Trustee (see Part 4‑1);
(b) the provision of legal assistance (see Part 4‑2);
(c) the Confiscated Assets Account (see Part 4‑3);
(d) charges over restrained property for payment of certain amounts (see Part 4‑4);
(e) enforcement of interstate orders in certain Territories (see Part 4‑5).
10 Miscellaneous (Chapter 5)
Chapter 5 deals with miscellaneous matters.
11 Interpreting this Act (Chapter 6)
Chapter 6 contains the Dictionary, which sets out a list of all the terms that are defined in this Act. It also sets out the meanings of some important concepts.
Part 1‑4—Application
Division 1—General
12 Act to bind Crown
(1) This Act binds the Crown in right of the Commonwealth, each of the States and each of the *self‑governing Territories.
(2) This Act does not make the Crown liable to be prosecuted for an offence.
13 Act to apply both within and outside Australia
This Act extends, except so far as the contrary intention appears:
(a) to acts, matters and things outside *Australia, whether or not in or over a foreign country; and
(b) to all persons, irrespective of their nationality or citizenship.
14 Application
This Act applies in relation to:
(a) an offence committed at any time (whether or not any person is convicted of the offence); and
(b) a person’s conviction of an offence at any time;
whether the offence or conviction occurred before or after the commencement of this Act.
14A Concurrent operation of State and Territory laws
(1) This Act does not exclude or limit the operation of a law of a State or Territory to the extent that the law is capable of operating concurrently with this Act.
(2) Subsection (1) does not apply to the *national unexplained wealth provisions.
Note: For the interaction between the national unexplained wealth provisions and a law of a State or Territory, see section 14L.
Division 2—The national unexplained wealth provisions
Subdivision A—General
14B Constitutional basis of the national unexplained wealth provisions
What this section is about
(1) This section sets out the constitutional basis of the *national unexplained wealth provisions.
National unexplained wealth provisions
(2) The national unexplained wealth provisions are:
(a) the *main unexplained wealth provisions; and
(b) the *participating jurisdiction information gathering provisions; and
(c) the *unexplained wealth machinery and transitional provisions.
Main unexplained wealth provisions
(3) The main unexplained wealth provisions are:
(a) section 20A and Part 2‑6; and
(b) the other provisions of this Act in so far as they relate to that section or that Part; and
(c) instruments made under this Act for the purposes of a provision referred to in paragraph (a) or (b).
Participating jurisdiction information gathering provisions
(4) The participating jurisdiction information gathering provisions are:
(a) section 14M and Schedule 1; and
(b) the other provisions of this Act in so far as they relate to that section or that Schedule; and
(c) instruments made under this Act for the purposes of a provision referred to in paragraph (a) or (b).
Unexplained wealth machinery and transitional provisions
(5) The unexplained wealth machinery and transitional provisions are:
(a) the following provisions (the main machinery and transitional provisions):
(i) sections 14A to 14L and 14N;
(ii) the definitions of adoption Act, amendment reference, cooperating State, express amendment, information gathering, main machinery and transitional provisions, main unexplained wealth provisions, national unexplained wealth provisions, non‑participating State, participating jurisdiction information gathering provisions, participating State, post‑amended version 1 of this Act, post‑amended version 2 of this Act, pre‑amended version of this Act, referral Act, relevant law 1, relevant law 2, special confiscation law, text reference 1, text reference 2, unexplained wealth and unexplained wealth machinery and transitional provisions in section 338;
(iii) Schedule 2; and
(b) the other provisions of this Act in so far as they relate to any of the main machinery and transitional provisions; and
(c) instruments made under this Act for the purposes of a provision referred to in paragraph (a) or (b).
Application in participating States
(6) The application of the *national unexplained wealth provisions in a *participating State is based on:
(a) the legislative powers that the Commonwealth Parliament has because of a reference or an adoption by the Parliaments of the participating States under paragraph 51(xxxvii) of the Constitution; and
(b) the other legislative powers that the Commonwealth Parliament has under the Constitution.
Application in non‑participating States
(7) The application of the *national unexplained wealth provisions (other than the *unexplained wealth machinery and transitional provisions) in a *non‑participating State is based on:
(a) the legislative powers that the Commonwealth Parliament has under section 51 (other than paragraph 51(xxxvii)) and section 122 of the Constitution; and
(b) the other legislative powers that the Commonwealth Parliament has under the Constitution.
(8) The application of the *unexplained wealth machinery and transitional provisions in a *non‑participating State that:
(a) was a *participating State because it had referred to the Commonwealth Parliament:
(i) *text reference 1; and
(ii) *text reference 2; and
(iii) the *amendment reference; and
(b) ceased to be a participating State because it terminated either or both of the following:
(i) the referral of text reference 1;
(ii) the referral of the amendment reference; and
(c) has not terminated the referral of text reference 2;
is based on:
(d) the legislative powers that the Commonwealth Parliament has because of the referral of text reference 2 under paragraph 51(xxxvii) of the Constitution; and
(e) the other legislative powers that the Commonwealth Parliament has under the Constitution.
(9) The application of the *unexplained wealth machinery and transitional provisions in a *non‑participating State that:
(a) was a *participating State because it had:
(i) adopted *post‑amended version 1 of this Act; and
(ii) adopted *post‑amended version 2 of this Act; and
(iii) referred to the Commonwealth Parliament the *amendment reference; and
(b) ceased to be a participating State because it terminated either or both of the following:
(i) the adoption of post‑amended version 1 of this Act;
(ii) the referral of the amendment reference; and
(c) has not terminated the adoption of post‑amended version 2 of this Act;
is based on:
(d) the legislative powers that the Commonwealth Parliament has because of the adoption of post‑amended version 2 of this Act under paragraph 51(xxxvii) of the Constitution; and
(e) the other legislative powers that the Commonwealth Parliament has under the Constitution.
(10) The application of the *unexplained wealth machinery and transitional provisions in a *non‑participating State not covered by subsection (8) or (9) is based on:
(a) the legislative powers that the Commonwealth Parliament has under section 51 (other than paragraph 51(xxxvii)) and section 122 of the Constitution; and
(b) the other legislative powers that the Commonwealth Parliament has under the Constitution.
Application in a self‑governing Territory
(11) The application of the *national unexplained wealth provisions in a *self‑governing Territory is based on:
(a) the legislative powers that the Commonwealth Parliament has under section 122 of the Constitution to make laws for the government of a Territory; and
(b) the other legislative powers that the Commonwealth Parliament has under the Constitution.
Despite section 2H of the Acts Interpretation Act 1901, the national unexplained wealth provisions as applying in a self‑governing Territory are laws of the Commonwealth.
Application outside Australia
(12) The application of the *national unexplained wealth provisions outside *Australia is based on:
(a) the legislative powers that the Commonwealth Parliament has under paragraph 51(xxix) of the Constitution; and
(b) the legislative powers that the Commonwealth Parliament has under section 51 (other than paragraph 51(xxix)) and section 122 of the Constitution; and
(c) the other legislative powers that the Commonwealth Parliament has under the Constitution.
14C What is a participating State?
Participating State
(1) A State is a participating State if, for the purposes of paragraph 51(xxxvii) of the Constitution, the Parliament of the State:
(a) has, by its *referral Act, referred to the Commonwealth Parliament:
(i) *text reference 1 (see subsection (2)); and
(ii) *text reference 2 (see subsection (3)); and
(iii) the *amendment reference (see subsection (4));
before the enactment of the Unexplained Wealth Legislation Amendment Act 2018; or
(b) has, by its *adoption Act:
(i) adopted *post‑amended version 1 of this Act (see subsection (5)); and
(ii) adopted *post‑amended version 2 of this Act (see subsection (6)); and
(iii) referred to the Commonwealth Parliament the amendment reference;
after the enactment of the Unexplained Wealth Legislation Amendment Act 2018.
Text reference 1
(2) Text reference 1 of a State means the matters to which the *pre‑amended version of this Act would relate if *express amendments were made to it in the terms, or substantially in the terms, of *relevant law 1, but excluding matters to which the pre‑amended version of this Act otherwise relates.
Text reference 2
(3) Text reference 2 of a State means the matters to which the *pre‑amended version of this Act would relate if *express amendments were made to it in the terms, or substantially in the terms, of *relevant law 2, but excluding matters to which the pre‑amended version of this Act otherwise relates.
Amendment reference
(4) The amendment reference of a State means the matters relating to:
(a) *unexplained wealth (see section 14D); and
(b) *information gathering (see section 14E);
to the extent of making laws with respect to those matters by making *express amendments of this Act.
Post‑amended version 1 of this Act
(5) Post‑amended version 1 of this Act, in relation to the *adoption Act of a State, means this Act as amended by:
(a) *relevant law 1; and
(b) any other *express amendments of this Act that:
(i) were enacted at any time after the enactment of relevant law 1 but before the enactment of the adoption Act; and
(ii) were not amendments of the *main machinery and transitional provisions (see subsection 14B(5));
to the extent that this Act as so amended is a law with respect to *text reference 1 or the *amendment reference referred to the Commonwealth Parliament by the Parliament of another State for the purposes of paragraph 51(xxxvii) of the Constitution.
Post‑amended version 2 of this Act
(6) Post‑amended version 2 of this Act, in relation to the *adoption Act of a State, means this Act as amended by:
(a) *relevant law 2; and
(b) any other *express amendments of this Act that:
(i) were enacted at any time after the enactment of relevant law 2 but before the enactment of the adoption Act; and
(ii) were amendments of the *main machinery and transitional provisions (see subsection 14B(5));
to the extent that this Act as so amended is a law with respect to *text reference 2 or the *amendment reference referred to the Commonwealth Parliament by the Parliament of another State for the purposes of paragraph 51(xxxvii) of the Constitution.
Certain things do not affect a participating State’s status
(7) A State is a participating State even if the State’s *referral Act or *adoption Act provides that:
(a) the reference to the Commonwealth Parliament of *text reference 1, *text reference 2 or the *amendment reference is to terminate in particular circumstances; or
(b) the adoption of *post‑amended version 1 of this Act or *post‑amended version 2 of this Act is to terminate in particular circumstances; or
(c) the reference to the Commonwealth Parliament of the amendment reference does not include the matter of including a provision in section 20A or Part 2‑6 that:
(i) requires a person pay an amount otherwise than by order of a court; or
(ii) requires or permits property (within the meaning of subsection 14D(2)) to be restrained, forfeited or seized otherwise than by order of a court; or
(d) the reference to the Commonwealth Parliament of text reference 1, text reference 2 or the amendment reference has effect only:
(i) if and to the extent that the matter is not included in the legislative powers of the Commonwealth Parliament (otherwise than by a reference under paragraph 51(xxxvii) of the Constitution); or
(ii) if and to the extent that the matter is included in the legislative powers of the Parliament of the State.
When a State ceases to be a participating State
(8) A State ceases to be a participating State if:
(a) in the case where the Parliament of the State has referred to the Commonwealth Parliament *text reference 1 and *text reference 2—either or both of those references terminate; or
(b) in the case where the Parliament of the State has adopted the *post‑amended version 1 of this Act and *post‑amended version 2 of this Act—either or both of those adoptions terminate.
(9) A State ceases to be a participating State if:
(a) the State’s referral of the *amendment reference terminates; and
(b) subsection (10) does not apply to the termination.
(10) A State does not cease to be a participating State because of the termination of its referral of the *amendment reference if:
(a) the termination is effected by the Governor of that State fixing a day by proclamation as the day on which the reference terminates; and
(b) the day fixed is no earlier than the first day after the end of the period of 6 months beginning on the day on which the proclamation is published; and
(c) that State’s amendment reference, and the amendment reference of every other State, terminates on the same day.
Other definitions
(11) In this Act:
adoption Act, of a State, means the Act of the State that:
(a) adopts *post‑amended version 1 of this Act; and
(b) adopts *post‑amended version 2 of this Act; and
(c) refers the *amendment reference to the Commonwealth Parliament.
express amendment of this Act means the direct amendment of the text of this Act (whether by the insertion, omission, repeal, substitution or relocation of words or matter) by another Commonwealth Act or by an instrument under a Commonwealth Act, but does not include the enactment by a Commonwealth Act of a provision that has, or will have, substantive effect otherwise than as part of the text of this Act.
pre‑amended version of this Act, in relation to the *referral Act of a State, means this Act as originally enacted and as subsequently amended by amendments enacted at any time before the enactment of the referral Act of the State.
referral Act, of a State, means the Act of the State that refers *text reference 1, *text reference 2 and the *amendment reference to the Commonwealth Parliament.
relevant law 1 means Schedules 2 and 4 to the Unexplained Wealth Legislation Amendment Act 2018.
relevant law 2 means Schedule 1 to the Unexplained Wealth Legislation Amendment Act 2018.
14D Meaning of unexplained wealth
(1) For the purposes of the *amendment reference of a State (see subsection 14C(4)), unexplained wealth means property or wealth that might not have been lawfully acquired.
(2) The meaning of lawfully acquired, property and wealth in subsection (1) includes, but is not limited to, the meaning of those terms in this Act as in force immediately before the enactment of the first *referral Act of a State.
14E Meaning of information gathering
For the purposes of the *amendment reference of a State (see subsection 14C(4)), information gathering means the production or provision of information for the purposes of, or relevant to, the taking of action, or the institution of proceedings, under a law of the State.
14F When a non‑participating State is a cooperating State
States that have referred text references 1 and 2
(1) A *non‑participating State is a cooperating State if:
(a) an *express amendment of section 14G or 14J (about rollback), or Division 2 of Part 4‑3 (about sharing proceeds), was enacted; and
(b) before the amendment was enacted, the State was a *participating State; and
(c) after the amendment was enacted, the State ceased to be a participating State because it terminated either or both of the following:
(i) the referral of *text reference 1;
(ii) the referral of the *amendment reference; and
(d) the termination was effected by a proclamation that was made under the State’s *referral Act for the purposes of this section; and
(e) the State has not terminated its referral of *text reference 2.
Note: Under Division 2 of Part 4‑3 (which is about sharing proceeds of confiscated assets under the national cooperative scheme), a non‑participating State that is a cooperating State is treated in the same way as a participating State.
States that have adopted the post‑amended versions of this Act
(2) A *non‑participating State is also a cooperating State if:
(a) an *express amendment of section 14G or 14J (about rollback), or Division 2 of Part 4‑3 (about sharing proceeds), was enacted; and
(b) before the amendment was enacted, the State was a *participating State; and
(c) after the amendment was enacted, the State ceased to be a participating State because it terminated either or both of the following:
(i) the adoption of *post‑amended version 1 of this Act;
(ii) the referral of the *amendment reference; and
(d) the termination was effected by a proclamation that was made under the State’s *adoption Act for the purposes of this section; and
(e) the State has not terminated its adoption of *post‑amended version 2 of this Act.
(3) Despite subsections (1) and (2), a *non‑participating State ceases to be, or is not, a cooperating State if a declaration under subsection (4) is in force in relation to the State.
(4) The Minister may, by legislative instrument, declare that a State is not a *cooperating State.
(5) A declaration made under subsection (4) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the declaration.
Subdivision B—Rollback of particular express amendments
14G Effect of rollback by participating States on unexplained wealth proceedings
When this section applies
(1) This section applies if:
(a) a proclamation is made under the *referral Act or *adoption Act of a *participating State for the purposes of this section; and
(b) the proclamation declares that an *express amendment of this Act (other than this Subdivision) is not to apply to proceedings covered by subsection (3), (4) or (5); and
(c) the proclamation comes into force in the period of 6 months beginning on the day the amendment is enacted.
Application of this Act to proceedings
(2) This Act applies to the proceedings as if the amendment had not been enacted.
Proceedings for restraining orders
(3) Proceedings are covered by this subsection if:
(a) the proceedings are instituted while the proclamation is in force; and
(b) the proceedings are for the making of a *restraining order under section 20A in relation to a *suspect; and
(c) the affidavit supporting the application for the order states that an *authorised officer suspects either or both of the following:
(i) that the suspect has committed a *relevant offence of a *participating State;
(ii) that the whole or any part of the suspect’s *wealth was derived from a relevant offence of a participating State.
Proceedings for unexplained wealth orders
(4) Proceedings are covered by this subsection if:
(a) the proceedings are instituted while the proclamation is in force; and
(b) the proceedings are for the making of an *unexplained wealth order (including a *preliminary unexplained wealth order) in relation to a *suspect; and
(c) the application for the order states that an *authorised officer suspects that the whole or any part of the suspect’s *wealth was derived from a *relevant offence of a *participating State.
Proceedings for other orders
(5) Proceedings are covered by this subsection if:
(a) the proceedings are instituted while the proclamation is in force; and
(b) the proceedings are for the making of an order that relates to:
(i) a *restraining order made in proceedings covered by subsection (3); or
(ii) an *unexplained wealth order (including a *preliminary unexplained wealth order) made in proceedings covered by subsection (4).
14H Effect of rollback by self‑governing Territories on unexplained wealth proceedings
When this section applies
(1) This section applies if:
(a) a law (the disapplying law) of a *self‑governing Territory is made for the purposes of this section; and
(b) the law declares that an *express amendment of this Act (other than this Subdivision) is not to apply to proceedings covered by subsection (3), (4) or (5); and
(c) the disapplying law comes into force in the period of 6 months beginning on the day the amendment is enacted.
Application of this Act to proceedings
(2) This Act applies to the proceedings as if the amendment had not been enacted.
Proceedings for restraining orders
(3) Proceedings are covered by this subsection if:
(a) the proceedings are instituted while the disapplying law is in force; and
(b) the proceedings are for the making of a *restraining order under section 20A in relation to a *suspect; and
(c) the affidavit supporting the application for the order states that an*authorised officer suspects either or both of the following:
(i) that the suspect has committed a *Territory offence;
(ii) that the whole or any part of the suspect’s *wealth was derived from a Territory offence.
Proceedings for unexplained wealth orders
(4) Proceedings are covered by this subsection if:
(a) the proceedings are instituted while the disapplying law is in force; and
(b) the proceedings are for the making of an *unexplained wealth order (including a *preliminary unexplained wealth order) in relation to a *suspect; and
(c) the application for the order states that an *authorised officer suspects that the whole or any part of the suspect’s *wealth was derived from a *Territory offence.
Proceedings for other orders
(5) Proceedings are covered by this subsection if:
(a) the proceedings are instituted while the disapplying law is in force; and
(b) the proceedings are for the making of an order that relates to:
(i) a *restraining order that has been made in proceedings covered by subsection (3); or
(ii) an *unexplained wealth order (including a *preliminary unexplained wealth order) that has been made in proceedings covered by subsection (4).
14J Effect of rollback by participating States on action taken under State reference information gathering provisions
When this section applies
(1) This section applies if:
(a) a proclamation is made under the *referral Act or *adoption Act of a *participating State for the purposes of this section; and
(b) the proclamation declares that an *express amendment of this Act (other than this Subdivision) is not to apply to:
(i) an application covered by subsection (3); or
(ii) an order made as a result of an application covered by subsection (3); or
(iii) a notice covered by subsection (4); and
(c) the proclamation comes into force in the period of 6 months beginning on the day the amendment is enacted.
Application of this Act to the application, order or notice
(2) This Act applies to the application, order or notice as if the amendment had not been enacted.
Applications for production orders
(3) This subsection covers an application if:
(a) the application is made while the proclamation is in force; and
(b) the application is for the making of a *production order under clause 1 of Schedule 1; and
(c) the application is made by an *authorised State/Territory officer of the State.
Notices to financial institutions
(4) This subsection covers a notice if:
(a) the notice is given while the proclamation is in force; and
(b) the notice is given to a *financial institution under clause 12 of Schedule 1; and
(c) the notice is given by an official of the State specified in subclause 12(3) of Schedule 1.
14K Effect of rollback by self‑governing Territories on action taken under State reference information gathering provisions
When this section applies
(1) This section applies if:
(a) a law (the disapplying law) of a *self‑governing Territory is made for the purposes of this section; and
(b) the disapplying law declares that an *express amendment of this Act (other than this Subdivision) is not to apply to:
(i) an application covered by subsection (3); or
(ii) an order made as a result of an application covered by subsection (3); or
(iii) a notice covered by subsection (4); and
(c) the disapplying law comes into force in the period of 6 months beginning on the day the amendment is enacted.
Application of this Act to the application, order or notice
(2) This Act applies to the application, order or notice as if the amendment had not been enacted.
Applications for production orders
(3) This subsection covers an application if:
(a) the application is made while the disapplying law is in force; and
(b) the application is for the making of a *production order under clause 1 of Schedule 1; and
(c) the application is made by an *authorised State/Territory officer of the Territory.
Notices to financial institutions
(4) This subsection covers a notice if:
(a) the notice is given while the disapplying law is in force; and
(b) the notice is given to a *financial institution under clause 12 of Schedule 1; and
(c) the notice is given by an official of the Territory specified in subclause 12(3) of Schedule 1.
Subdivision C—Interaction of the national unexplained wealth provisions and orders with State and Territory laws and orders
14L Concurrent operation of State and Territory laws with national unexplained wealth provisions
Concurrent operation of laws
(1) The *national unexplained wealth provisions do not exclude or limit the operation of a law of a State or Territory (including a *special confiscation law) to the extent that the law is capable of operating concurrently with those provisions.
(2) A *corresponding law of a State or Territory is a special confiscation law while the State is a *participating State or the Territory is a *self‑governing Territory.
(3) Without limiting subsection (1), the *national unexplained wealth provisions do not exclude or limit the concurrent operation of a *special confiscation law merely because:
(a) that law, or an order made under that law:
(i) prevents or restricts a person from disposing of, or dealing with, property (for example, by way of a restraining order made under that law); or
(ii) confiscates or forfeits property of a person (for example, by way of a forfeiture order made under that law); or
(iii) requires the person to pay an amount (for example, by way of an unexplained wealth order made under that law); or
(iv) deals with a matter prescribed by the regulations; and
(b) the national unexplained wealth provisions, or an order made under those provisions, also:
(i) prevent or restrict the person from disposing of, or dealing with, the property (for example, by way of a restraining order under section 20A); or
(ii) require the person to pay an amount (for example, by way of an *unexplained wealth order); or
(iii) deal with a matter prescribed by the regulations.
(4) Subsection (3) applies even if the *special confiscation law, or order made under that law, does any one or more of the following:
(a) prevents or restricts a person from disposing of, or dealing with, property in circumstances in which a *restraining order under section 20A could not be obtained to prevent or restrict such disposal or dealing;
(b) prevents or restricts, in particular circumstances, disposal of, or dealing with, more or less property than could be covered by a restraining order under section 20A in those circumstances;
(c) prevents or restricts disposal of, or dealing with, property that is or could be excluded from a restraining order under section 20A;
(d) confiscates or forfeits, in particular circumstances, property of a greater or lesser value than the *unexplained wealth amount of a person under an *unexplained wealth order that is or could be made in those circumstances;
(e) requires payment of an amount that is greater or lesser than the amount that is or could be payable under an unexplained wealth order;
(f) deals with a matter prescribed by the regulations.
This section does not affect section 14A
(5) This section does not by implication affect section 14A (which deals with the concurrent operation of this Act, except the *national unexplained wealth provisions, and laws of States and Territories).
Application of this section
(6) This section applies in relation to the operation of the *national unexplained wealth provisions and a law of a *participating State or *self‑governing Territory in the period referred to in subsection (7), including in relation to:
(a) orders that are made under a *special confiscation law in that period in relation to proceedings that are instituted under the special confiscation law before or in that period; and
(b) orders that are made under a special confiscation law before that period and that are in force at any time in that period; and
(c) orders that are made under the national unexplained wealth provisions in that period in relation to proceedings that are instituted under the national unexplained wealth provisions before or in that period.
(7) For the purposes of subsection (6), the period is as follows:
(a) for a *participating State that has a *referral Act—the period starts at the commencement of this section and ends only if the State ceases to be a participating State, in which case, the period ends at the time the State so ceases;
(b) for a participating State that has an *adoption Act—the period starts at the commencement of the State’s adoption Act and ends only if the State ceases to be a participating State, in which case, the period ends at the time the State so ceases;
(c) for a *self‑governing Territory—the period starts at the commencement of this section and does not end.
Subdivision D—Other matters
14M Information gathering by participating States and self‑governing Territories
Schedule 1 has effect.
14N Transitional, application and saving provisions relating to the national cooperative scheme on unexplained wealth
Schedule 2 has effect.
Chapter 2—The confiscation scheme
Part 2‑1A—Freezing orders
15A Simplified outline of this Part
A freezing order can be made against an account with a financial institution if:
(a) there are grounds to suspect the account balance reflects proceeds or an instrument of certain offences; and
(b) a magistrate is satisfied that, unless the order is made, there is a risk that the balance of the account will be reduced so that a person will not be deprived of all or some of the proceeds or instrument.
Division 1—Making freezing orders
15B Making freezing orders
(1) A magistrate must order that a *financial institution not allow a withdrawal from an *account with the institution, except in the manner and circumstances specified in the order, if:
(a) an *authorised officer described in paragraph (a), (aa), (b) or (c) of the definition of authorised officer in section 338 applies for the order in accordance with Division 2; and
(b) there are reasonable grounds to suspect that the balance of the account:
(i) is *proceeds of an *indictable offence, a *foreign indictable offence or an *indictable offence of Commonwealth concern (whether or not the identity of the person who committed the offence is known); or
(ii) is wholly or partly an *instrument of a *serious offence; and
(c) the magistrate is satisfied that, unless an order is made under this section, there is a risk that the balance of the account will be reduced so that a person will not be deprived of all or some of such proceeds or such an instrument.
Note 1: Paragraphs (a), (aa), (b) and (c) of the definition of authorised officer in section 338 cover certain persons performing functions under this Act for the Australian Federal Police, the National Anti‑Corruption Commission, the Australian Crime Commission and the Immigration and Border Protection Department.
Note 2: The balance of the account may be proceeds of an offence even though the balance is only partly derived from the offence: see section 329.
(2) An order made under subsection (1) covers the balance of the *account from time to time.
Order need not be based on commission of particular offence
(3) The reasonable grounds referred to in paragraph (1)(b), and the satisfaction referred to in paragraph (1)(c), need not be based on a finding as to the commission of a particular offence.
Division 2—How freezing orders are obtained
15C Affidavit supporting application made in person
If an *authorised officer applies in person to a magistrate for a *freezing order relating to an *account with a *financial institution, the application must be supported by an affidavit of an authorised officer described in paragraph (a), (aa), (b) or (c) of the definition of authorised officer in section 338:
(a) setting out sufficient information to identify the account (for example, the account number); and
(b) identifying the financial institution; and
(c) setting out the grounds to suspect that the balance of the account:
(i) is *proceeds of an *indictable offence, a *foreign indictable offence or an *indictable offence of Commonwealth concern; or
(ii) is wholly or partly an *instrument of a *serious offence; and
(d) setting out the grounds on which a person could be satisfied that, unless the order is made, there is a risk that the balance of the account will be reduced so that a person will not be deprived of all or some of such proceeds or of such an instrument.
Note: Paragraphs (a), (aa), (b) and (c) of the definition of authorised officer in section 338 cover certain persons performing functions under this Act for the Australian Federal Police, the National Anti‑Corruption Commission, the Australian Crime Commission and the Immigration and Border Protection Department.
15D Applying for freezing orders by telephone or other electronic means
(1) An *authorised officer described in paragraph (a), (aa), (b) or (c) of the definition of authorised officer in section 338 may apply to a magistrate for a *freezing order by telephone, fax or other electronic means:
(a) in an urgent case; or
(b) if the delay that would occur if an application were made in person would frustrate the effectiveness of the order.
Note: Paragraphs (a), (aa), (b) and (c) of the definition of authorised officer in section 338 cover certain persons performing functions under this Act for the Australian Federal Police, the National Anti‑Corruption Commission, the Australian Crime Commission and the Immigration and Border Protection Department.
(2) An application under subsection (1):
(a) must include all information that would be required in an ordinary application for a *freezing order and supporting affidavit; and
(b) if necessary, may be made before the affidavit is sworn.
(3) The magistrate may require:
(a) communication by voice to the extent that it is practicable in the circumstances; and
(b) any further information.
15E Making order by telephone etc.
(1) The magistrate may complete and sign the same form of *freezing order that would be made under section 15B if satisfied that:
(a) a freezing order should be issued urgently; or
(b) the delay that would occur if an application were made in person would frustrate the effectiveness of the order.
(2) If the magistrate makes the *freezing order, he or she must inform the applicant, by telephone, fax or other electronic means, of the terms of the order and the day on which and the time at which it was signed.
(3) The applicant must then:
(a) complete a form of *freezing order in terms substantially corresponding to those given by the magistrate; and
(b) state on the form:
(i) the name of the magistrate; and
(ii) the day on which the order was signed; and
(iii) the time at which the order was signed.
(4) The applicant must give the magistrate the form of *freezing order completed by the applicant by the end of:
(a) the second *working day after the magistrate makes the order; or
(b) the first working day after the magistrate makes the order, if it is served on the *financial institution concerned before the first working day after the magistrate makes the order.
(5) If, before the magistrate made the *freezing order, the applicant did not give the magistrate an affidavit supporting the application and meeting the description in section 15C, the applicant must do so by the time by which the applicant must give the magistrate the form of freezing order completed by the applicant.
(6) If the applicant does not comply with subsection (5), the *freezing order is taken never to have had effect.
(7) The magistrate must attach the form of *freezing order completed by the magistrate to the documents provided under subsection (4) and (if relevant) subsection (5).
15F Unsigned freezing orders in court proceedings
If:
(a) it is material, in any proceedings, for a court to be satisfied that a *freezing order applied for under section 15D was duly made; and
(b) the form of freezing order signed by the magistrate is not produced in evidence;
the court must assume that the order was not duly made unless the contrary is proved.
15FA Prohibition of publication of evidence—proceedings for freezing orders
(1) If an *authorised officer applies to a magistrate for a *freezing order in accordance with this Division, the magistrate may make an order under subsection (2).
(2) If it appears to the magistrate to be necessary in order to prevent prejudice to the administration of justice, the magistrate may make an order prohibiting or restricting the publication of all or any of the following matters:
(a) if the application is made under section 15C (in person)—the matters referred to in that section that are contained in an affidavit made in support of the application;
(b) if the application is made under section 15D (by telephone or other electronic means)—the matters referred to in paragraph 15D(2)(a) that are contained, or that are to be contained, in an affidavit made in support of the application.
(3) The magistrate may make an order under subsection (2) at any time after the application is made and before it is determined.
(4) The power conferred by subsection (2) is in addition to, and is not taken to derogate from, any other power of the magistrate.
15G Offence for making false statements in applications
A person commits an offence if:
(a) the person makes a statement (whether orally, in a document or in any other way); and
(b) the statement:
(i) is false or misleading; or
(ii) omits any matter or thing without which the statement is misleading; and
(c) the statement is made in, or in connection with, an application for a *freezing order.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
15H Offences relating to orders made under section 15E
Offence for stating incorrect names in telephone orders
(1) A person commits an offence if:
(a) the person states a name of a magistrate in a document; and
(b) the document purports to be a form of *freezing order under section 15E; and
(c) the name is not the name of the magistrate who made the order.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Offence for unauthorised form of order
(2) A person commits an offence if:
(a) the person states a matter in a form of *freezing order under section 15E; and
(b) the matter departs in a material particular from the order made by the magistrate.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Offence for service of unauthorised form of order
(3) A person commits an offence if:
(a) the person presents a document to a person; and
(b) the document purports to be a form of *freezing order under section 15E; and
(c) the document:
(i) has not been approved by a magistrate under that section; or
(ii) departs in a material particular from the terms given by the magistrate under that section.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Offence for giving form of order different from that served
(4) A person commits an offence if:
(a) the person gives a magistrate a form of *freezing order under section 15E relating to a *financial institution; and
(b) the person does so after presenting to the financial institution a document purporting to be a form of the freezing order; and
(c) the form given to the magistrate is not in the same form as the document presented to the financial institution.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Division 3—Giving effect to freezing orders
15J Service of freezing order etc. on financial institution and account‑holder
(1) If a magistrate makes a *freezing order relating to an *account with a *financial institution, the applicant for the order must cause the things described in subsection (2) to be given to:
(a) the financial institution; and
(b) each person in whose name the account is held.
(2) The things are as follows:
(a) a copy of the order (or of a form of the order under section 15E);
(b) a written statement of the name and contact details of the *enforcement agency mentioned in the paragraph of the definition of authorised officer in section 338 that describes the applicant.
Note: If the copy of the order is given to the financial institution after the end of the first working day after the order is made, the order does not come into force: see subsection 15N(1).
15K Freezing order does not prevent withdrawal to enable financial institution to meet its liabilities
A *freezing order relating to an *account with a *financial institution does not prevent the institution from allowing a withdrawal from the account to enable the institution to meet a liability imposed on the institution by or under a written law of the Commonwealth, a State or a Territory.
15L Offence for contravening freezing orders
A *financial institution commits an offence if:
(a) the institution allows a withdrawal from an *account with the institution; and
(b) there is a *freezing order relating to the account; and
(c) allowing the withdrawal contravenes the order.
Penalty: Imprisonment for 5 years or 300 penalty units or both.
15M Protection from suits etc. for those complying with orders
No action, suit or proceeding lies against:
(a) a *financial institution; or
(b) an *officer or *agent of the institution acting in the course of that person’s employment or agency;
in relation to any action taken by the institution or person in complying with a *freezing order or in the mistaken belief that action was required under a freezing order.
Note: This section does not affect any action that may lie against anyone else for the making or operation of a freezing order.
Division 4—Duration of freezing orders
15N When a freezing order is in force
(1) A *freezing order relating to an *account with a *financial institution comes into force when a copy of the order (or of a form of the order under section 15E) is given to the institution. However, the order does not come into force if the copy is given to the institution after the end of the first *working day after the order is made.
(2) The *freezing order remains in force until:
(a) the end of the period specified in the order (as affected by section 15P if relevant) from when the copy of the order was given to the institution; or
(b) if, before the end of that period, a court makes a decision on an application for a *restraining order to cover the *account—the time the court makes that decision.
(3) The *freezing order, as originally made, must not specify a period of more than 3 *working days.
15P Order extending a freezing order
(1) A magistrate may make an order extending the period specified in a *freezing order made in relation to an *account with a *financial institution if:
(a) an *authorised officer described in paragraph (a), (aa), (b) or (c) of the definition of authorised officer in section 338 applies for the extension; and
(b) the magistrate is satisfied that an application has been made to a court (but not decided by the court) for a *restraining order to cover the account (whether or not the restraining order is also to cover other property).
Note: Paragraphs (a), (aa), (b) and (c) of the definition of authorised officer in section 338 cover certain persons performing functions under this Act for the Australian Federal Police, the National Anti‑Corruption Commission, the Australian Crime Commission and the Immigration and Border Protection Department.
(2) The extension may be for:
(a) a specified number of *working days; or
(b) the period ending when the court decides the application for the *restraining order.
(3) The extension does not have effect unless a copy of the order for the extension is given to the *financial institution before the time the *freezing order would cease to be in force apart from the extension.
(4) The following provisions apply in relation to an order extending a *freezing order in a way corresponding to the way in which they apply in relation to a freezing order:
(a) Division 2 (except paragraphs 15C(c) and (d));
(b) section 15J (except the note to that section).
(5) Division 2 applies because of subsection (4) as if:
(a) section 15C also required that an affidavit supporting an application:
(i) identify the *freezing order; and
(ii) state that an application has been made for a *restraining order to cover the *account; and
(b) the reference in subsection 15E(1) to section 15B were a reference to subsection (1) of this section.
Division 5—Varying scope of freezing orders
15Q Magistrate may vary freezing order to allow withdrawal to meet reasonable expenses
(1) A magistrate may vary a *freezing order relating to an *account with a *financial institution so that the institution may allow a withdrawal from the account to meet one or more of the following relating to a person in whose name the account is held:
(a) the reasonable living expenses of the person;
(b) the reasonable living expenses of any of the *dependants of the person;
(c) the reasonable business expenses of the person;
(d) a specified debt incurred in good faith by the person.
(2) The magistrate may vary the *freezing order only if:
(a) a person in whose name the *account is held has applied for the variation; and
(b) the person has given written notice of the application and the grounds for the application to the *enforcement agency mentioned in the paragraph of the definition of authorised officer in section 338 that describes the *authorised officer who applied for the freezing order; and
(c) the magistrate is satisfied that the expense or debt does not, or will not, relate to legal costs that the person has incurred, or will incur, in connection with:
(i) proceedings under this Act; or
(ii) proceedings for an offence against a law of the Commonwealth, a State or a Territory; and
(d) the magistrate is satisfied that the person cannot meet the expense or debt out of property that is not covered by:
(i) a freezing order; or
(ii) a *restraining order; or
(iii) an *interstate restraining order; or
(iv) a *foreign restraining order that is registered under the *Mutual Assistance Act.
(3) The variation does not take effect until written notice of it is given to the *financial institution.
Division 6—Revoking freezing orders
15R Application to revoke a freezing order
(1) A person may apply to a magistrate to revoke a *freezing order.
(2) The applicant for the revocation must give written notice of the application and the grounds on which the revocation is sought to the *enforcement agency mentioned in the paragraph of the definition of authorised officer in section 338 that describes the *authorised officer who applied for the *freezing order.
(3) One or more of the following may adduce additional material to the magistrate relating to the application to revoke the *freezing order:
(a) the *authorised officer who applied for the freezing order;
(b) the authorised officer whose affidavit supported the application for the freezing order;
(c) another authorised officer described in the paragraph of the definition of authorised officer in section 338 that describes the authorised officer mentioned in paragraph (a) or (b) of this subsection.
(4) The magistrate may revoke the *freezing order if satisfied that it is in the interests of justice to do so.
15S Notice of revocation of a freezing order
(1) If a *freezing order relating to an *account with a *financial institution is revoked under section 15R, an *authorised officer (the notifying officer) described in the paragraph of the definition of authorised officer in section 338 that describes the authorised officer who applied for the freezing order must cause written notice of the revocation to be given to:
(a) the financial institution; and
(b) each person in whose name the account is held.
(2) However, the notifying officer need not give notice to the applicant for the revocation.
(3) Subsection (1) does not require more than one *authorised officer to cause notice of the revocation to be given.
Part 2‑1—Restraining orders
16 Simplified outline of this Part
Restraining orders can be made against property, in relation to certain offences, on grounds that relate to possible forfeiture or confiscation orders relating to those offences. (There is not always a requirement that a person has been convicted of such an offence.)
Division 1—Making restraining orders
17 Restraining orders—people convicted of or charged with indictable offences
When a restraining order must be made
(1) A court with *proceeds jurisdiction must order that:
(a) property must not be disposed of or otherwise dealt with by any person; or
(b) property must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order;
if:
(c) a *proceeds of crime authority applies for the order; and
(d) a person has been convicted of, or has been charged with, an *indictable offence, or it is proposed that he or she be charged with an indictable offence; and
(e) any affidavit requirements in subsection (3) for the application have been met; and
(f) (unless there are no such requirements) the court is satisfied that the *authorised officer who made the affidavit holds the suspicion or suspicions stated in the affidavit on reasonable grounds.
Property that a restraining order may cover
(2) The order must specify, as property that must not be disposed of or otherwise dealt with, the property specified in the application for the order, to the extent that the court is satisfied that there are reasonable grounds to suspect that that property is any one or more of the following:
(a) all or specified property of the *suspect;
(aa) all or specified *bankruptcy property of the suspect;
(b) all property of the suspect other than specified property;
(ba) all bankruptcy property of the suspect other than specified bankruptcy property;
(c) specified property of another person (whether or not that other person’s identity is known) that is subject to the *effective control of the suspect;
(d) specified property of another person (whether or not that other person’s identity is known) that is *proceeds of the offence or an *instrument of the offence.
Affidavit requirements
(3) The application for the order must be supported by an affidavit of an *authorised officer stating:
(a) if the *suspect has not been convicted of an indictable offence—that the authorised officer suspects that the suspect committed the offence; and
(b) if the application is to restrain property of a person other than the suspect but not to restrain *bankruptcy property of the suspect—that the authorised officer suspects that:
(i) the property is subject to the *effective control of the suspect; or
(ii) the property is *proceeds of the offence or an *instrument of the offence.
The affidavit must include the grounds on which the *authorised officer holds those suspicions.
Refusal to make a restraining order
(4) Despite subsection (1), the court may refuse to make a *restraining order in relation to an *indictable offence that is not a *serious offence if the court is satisfied that it is not in the public interest to make the order.
Note: A court can also refuse to make a restraining order if the Commonwealth refuses to give an undertaking: see section 21.
Risk of property being disposed of etc.
(5) The court must make a *restraining order even if there is no risk of the property being disposed of or otherwise dealt with.
Later acquisitions of property
(6) The court may specify that a *restraining order covers property that is acquired by the *suspect after the court makes the order. Otherwise, no property that is acquired after a court makes a restraining order is covered by the order.
18 Restraining orders—people suspected of committing serious offences
When a restraining order must be made
(1) A court with *proceeds jurisdiction must order that:
(a) property must not be disposed of or otherwise dealt with by any person; or
(b) property must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order;
if:
(c) a *proceeds of crime authority applies for the order; and
(d) there are reasonable grounds to suspect that a person has committed a *serious offence; and
(e) any affidavit requirements in subsection (3) for the application have been met; and
(f) the court is satisfied that the *authorised officer who made the affidavit holds the suspicion or suspicions stated in the affidavit on reasonable grounds.
Note: A court can refuse to make a restraining order if the Commonwealth refuses to give an undertaking: see section 21.
Property that a restraining order may cover
(2) The order must specify, as property that must not be disposed of or otherwise dealt with, the property specified in the application for the order, to the extent that the court is satisfied that there are reasonable grounds to suspect that that property is any one or more of the following:
(a) all or specified property of the *suspect;
(aa) all or specified *bankruptcy property of the suspect;
(b) all property of the suspect other than specified property;
(ba) all bankruptcy property of the suspect other than specified bankruptcy property;
(c) specified property of another person (whether or not that other person’s identity is known) that is subject to the *effective control of the suspect;
(d) specified property of another person (whether or not that other person’s identity is known) that is:
(i) in any case—*proceeds of the offence; or
(ii) if the offence to which the order relates is a *serious offence—an *instrument of the offence.
Affidavit requirements
(3) The application for the order must be supported by an affidavit of an *authorised officer stating:
(a) that the authorised officer suspects that the *suspect committed the offence; and
(b) if the application is to restrain property of a person other than the suspect but not to restrain *bankruptcy property of the suspect—that the authorised officer suspects that:
(i) the property is subject to the *effective control of the suspect; or
(ii) in any case—the property is *proceeds of the offence; or
(iii) if the offence to which the order relates is a *serious offence—the property is an *instrument of the offence.
The affidavit must include the grounds on which the *authorised officer holds those suspicions.
Restraining order need not be based on commission of a particular offence
(4) The reasonable grounds referred to in paragraph (1)(d) need not be based on a finding as to the commission of a particular *serious offence.
Risk of property being disposed of etc.
(5) The court must make a *restraining order even if there is no risk of the property being disposed of or otherwise dealt with.
Later acquisitions of property
(6) The court may specify that a *restraining order covers property that is acquired by the *suspect after the court makes the order. Otherwise, no property that is acquired after a court makes a restraining order is covered by the order.
19 Restraining orders—property suspected of being proceeds of indictable offences etc.
When a restraining order must be made
(1) A court with *proceeds jurisdiction must order that:
(a) property must not be disposed of or otherwise dealt with by any person; or
(b) property must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order;
if:
(c) a *proceeds of crime authority applies for the order; and
(d) there are reasonable grounds to suspect that the property is:
(i) the *proceeds of a *terrorism offence or any other *indictable offence, a *foreign indictable offence or an *indictable offence of Commonwealth concern (whether or not the identity of the person who committed the offence is known); or
(ii) an *instrument of a *serious offence; and
(e) the application for the order is supported by an affidavit of an *authorised officer stating that the authorised officer suspects that:
(i) in any case—the property is proceeds of the offence; or
(ii) if the offence to which the order relates is a serious offence—the property is an *instrument of the offence;
and including the grounds on which the authorised officer holds the suspicion; and
(f) the court is satisfied that the *authorised officer who made the affidavit holds the suspicion stated in the affidavit on reasonable grounds.
Property that a restraining order may cover
(2) The order must specify, as property that must not be disposed of or otherwise dealt with, the property specified in the application for the order, to the extent that the court is satisfied that there are reasonable grounds to suspect that that property is:
(a) in any case—*proceeds of the offence; or
(b) if the offence to which the order relates is a *serious offence—an *instrument of the offence.
Refusal to make a restraining order
(3) Despite subsection (1), the court may refuse to make a *restraining order in relation to an *indictable offence that is not a *serious offence if the court is satisfied that it is not in the public interest to make the order.
Note: A court can also refuse to make a restraining order if the Commonwealth refuses to give an undertaking: see section 21.
Restraining order need not be based on commission of a particular offence
(4) The reasonable grounds referred to in paragraph (1)(d) need not be based on a finding as to the commission of a particular offence.
Risk of property being disposed of etc.
(5) The court must make a *restraining order even if there is no risk of the property being disposed of or otherwise dealt with.
20 Restraining orders—people suspected of deriving literary proceeds from indictable offences etc.
When a restraining order must be made
(1) A court with *proceeds jurisdiction must order that:
(a) property must not be disposed of or otherwise dealt with by any person; or
(b) property must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order;
if:
(c) a *proceeds of crime authority applies for the order; and
(d) there are reasonable grounds to suspect that a person has committed an *indictable offence or a *foreign indictable offence, and that the person has derived *literary proceeds in relation to the offence; and
(e) any affidavit requirements in subsection (3) for the application have been met; and
(f) (unless there are no such requirements) the court is satisfied that the *authorised officer who made the affidavit holds the suspicion or suspicions stated in the affidavit on reasonable grounds.
Property that a restraining order may cover
(2) The order must specify, as property that must not be disposed of or otherwise dealt with, the property specified in the application for the order, to the extent that the court is satisfied that there are reasonable grounds to suspect that that property is any one or more of the following:
(a) all or specified property of the *suspect;
(aa) all or specified *bankruptcy property of the suspect;
(b) all property of the suspect other than specified property;
(ba) all bankruptcy property of the suspect other than specified bankruptcy property;
(c) specified property of another person (whether or not that other person’s identity is known) that is subject to the *effective control of the suspect.
Affidavit requirements
(3) The application for the order must be supported by an affidavit of an *authorised officer stating:
(a) if the *suspect has not been convicted of the offence—that the authorised officer suspects that the suspect committed the offence; and
(c) that the authorised officer suspects that the suspect derived *literary proceeds in relation to the offence; and
(d) if the application is to restrain property of a person other than the suspect but not to restrain *bankruptcy property of the suspect—that the authorised officer suspects that the property is subject to the *effective control of the suspect.
The affidavit must include the grounds on which the *authorised officer holds those suspicions.
Refusal to make a restraining order
(4) Despite subsection (1), the court may refuse to make a *restraining order in relation to an *indictable offence that is not a *serious offence if the court is satisfied that it is not in the public interest to make the order.
Note: A court can also refuse to make a restraining order if the Commonwealth refuses to give an undertaking: see section 21.
Restraining order need not be based on commission of a particular offence
(5) The reasonable grounds referred to in paragraph (1)(d) need not be based on a finding as to the commission of a particular *indictable offence or *foreign indictable offence (as the case requires).
Risk of property being disposed of etc.
(6) The court must make a *restraining order even if there is no risk of the property being disposed of or otherwise dealt with.
Later acquisitions of property
(7) The court may specify that a *restraining order covers property that is acquired by the *suspect after the court makes the order. Otherwise, no property that is acquired after a court makes a restraining order is covered by the order.
20A Restraining orders—unexplained wealth
When a restraining order must be made
(1) A court with *proceeds jurisdiction must order that:
(a) property must not be disposed of or otherwise dealt with by any person; or
(b) property must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order;
if:
(c) a *proceeds of crime authority applies for the order; and
(d) there are reasonable grounds to suspect that a person’s *total wealth exceeds the value of the person’s *wealth that was *lawfully acquired; and
(e) any affidavit requirements in subsection (3) for the application have been met; and
(f) the court is satisfied that the *authorised officer who made the affidavit holds the suspicion or suspicions stated in the affidavit on reasonable grounds; and
(g) there are reasonable grounds to suspect either or both of the following:
(i) that the person has committed an offence against a law of the Commonwealth, a *foreign indictable offence, a *relevant offence of a *participating State, a *State offence that has a federal aspect or a *Territory offence;
(ii) that the whole or any part of the person’s wealth was derived or realised, directly or indirectly, from an offence against a law of the Commonwealth, a foreign indictable offence, a relevant offence of a participating State, a State offence that has a federal aspect or a Territory offence.
Property that a restraining order may cover
(2) The order must specify, as property that must not be disposed of or otherwise dealt with, the property specified in the application for the order, to the extent that the court is satisfied that there are reasonable grounds to suspect that that property is any one or more of the following:
(a) all or specified property of the *suspect;
(b) all or specified *bankruptcy property of the suspect;
(c) all property of the suspect other than specified property;
(d) all bankruptcy property of the suspect other than specified bankruptcy property;
(e) specified property of another person (whether or not that other person’s identity is known) that is subject to the *effective control of the suspect.
Affidavit requirements
(3) The application for the order must be supported by an affidavit of an *authorised officer stating:
(a) that the authorised officer suspects that the *total wealth of the *suspect exceeds the value of the suspect’s *wealth that was *lawfully acquired; and
(b) if the application is to restrain property of a person other than the suspect but not to restrain *bankruptcy property of the *suspect—that the authorised officer suspects that the property is subject to the *effective control of the suspect; and
(c) that the authorised officer suspects either or both of the following:
(i) that the suspect has committed an offence against a law of the Commonwealth, a *foreign indictable offence, a *relevant offence of a *participating State, a *State offence that has a federal aspect or a *Territory offence;
(ii) that the whole or any part of the suspect’s wealth was derived or realised, directly or indirectly, from an offence against a law of the Commonwealth, a foreign indictable offence, a relevant offence of a participating State, a State offence that has a federal aspect or a Territory offence.
The affidavit must include the grounds on which the authorised officer holds those suspicions.
Refusal to make a restraining order
(4) Despite subsection (1), the court may refuse to make a *restraining order if the court is satisfied that:
(a) there are not reasonable grounds to suspect that the person’s *total wealth exceeds by $100,000 or more the value of the person’s *wealth that was *lawfully acquired; or
(b) it is not in the public interest to make the order.
Note: A court can also refuse to make a restraining order if the Commonwealth refuses to give an undertaking: see section 21.
(4A) If the court refuses to make a *restraining order under this section, it may make any order as to costs it considers appropriate, including costs on an indemnity basis.
Risk of property being disposed of etc.
(5) The court must make a *restraining order even if there is no risk of the property being disposed of or otherwise dealt with.
Later acquisitions of property
(6) The court may specify that a *restraining order covers property that is acquired by the *suspect after the court makes the order. Otherwise, no property that is acquired after a court makes a restraining order is covered by the order.
21 Refusal to make an order for failure to give undertaking
(1) The court may refuse to make a *restraining order if the Commonwealth refuses or fails to give the court an appropriate undertaking with respect to the payment of damages or costs, or both, for the making and operation of the order.
(2) The *responsible authority may give such an undertaking on behalf of the Commonwealth.
22 Restraining orders must only relate to one suspect
(1) A *restraining order must only relate to one *suspect.
Note: A restraining order might not relate to any suspect if the person who is suspected of committing the offence is not known and the restraining order only restrains proceeds of the offence. The restraining order may also cover the property of one or more other persons who are not the suspect.
(2) A *restraining order may relate to more than one offence in relation to that *suspect.
23 Conditions on restraining orders
A *restraining order may be made subject to conditions.
24 Allowance for expenses
(1) The court may allow any one or more of the following to be met out of property, or a specified part of property, covered by a *restraining order:
(a) the reasonable living expenses of the person whose property is restrained;
(b) the reasonable living expenses of any of the *dependants of that person;
(c) the reasonable business expenses of that person;
(d) a specified debt incurred in good faith by that person.
(2) The court may only make an order under subsection (1) if:
(a) the person whose property is restrained has applied for the order; and
(b) the person has notified the *responsible authority in writing of the application and the grounds for the application; and
(c) the person has disclosed all of his or her *interests in property, and his or her liabilities, in a statement on oath that has been filed in the court; and
(ca) the court is satisfied that the expense or debt does not, or will not, relate to legal costs that the person has incurred, or will incur, in connection with:
(i) proceedings under this Act; or
(ii) proceedings for an offence against a law of the Commonwealth, a State or a Territory; and
(d) the court is satisfied that the person cannot meet the expense or debt out of property that is not covered by:
(i) a *restraining order; or
(ii) an *interstate restraining order; or
(iii) a *foreign restraining order that is registered under the *Mutual Assistance Act.
(3) Property that is covered by:
(a) a *restraining order; or
(b) an *interstate restraining order; or
(c) a *foreign restraining order that is registered under the *Mutual Assistance Act;
is taken, for the purposes of paragraph (2)(d), not to be covered by the order if it would not be reasonably practicable for the *Official Trustee to take custody and control of the property.
24A Excluding property from or revoking restraining orders in certain cases when expenses are not allowed
(1) If:
(a) because of the operation of subsection 24(3), property that is covered by a *restraining order is taken, for the purposes of paragraph 24(2)(d), not to be covered by the order; and
(b) as a result, and for no other reason, the court refuses an application to make an order under subsection 24(1);
the court may:
(c) exclude the property from the restraining order; or
(d) if the property is the only property covered by the restraining order—revoke the restraining order.
(2) The court must not exclude the property or revoke the order unless the court is satisfied that the property is needed to meet any one or more of the following:
(a) the reasonable living expenses of the person whose property is restrained;
(b) the reasonable living expenses of any of the *dependants of that person;
(c) the reasonable business expenses of that person;
(d) a specified debt incurred in good faith by that person.
(3) If the court excludes the property from the *restraining order, the *responsible authority must give written notice of the exclusion to:
(a) the owner of the property (if the owner is known); and
(b) any other person the authority reasonably believes may have an *interest in the property.
However, the authority need not give notice to the applicant for the order under subsection 24(1).
(4) If the court revokes the *restraining order, the *responsible authority must give written notice of the revocation to:
(a) the owner of any property covered by the restraining order (if the owner is known); and
(b) any other person the authority reasonably believes may have an *interest in the property.
However, the authority need not give notice to the applicant for the order under subsection 24(1).
Division 2—How restraining orders are obtained
25 Proceeds of crime authority may apply for a restraining order
A *proceeds of crime authority may apply for a *restraining order.
26 Notice of application
(1) Subject to subsection (4), the *responsible authority must:
(a) give written notice of an application for a *restraining order covering property to the owner of the property (if the owner is known); and
(b) include with the notice a copy of the application and any affidavit supporting the application.
(2) Subject to subsection (4), the *responsible authority must also:
(a) give written notice of an application for a *restraining order covering property to any other person the authority reasonably believes may have an *interest in the property; and
(b) include with the notice:
(i) a copy of the application; and
(ii) a further notice that the person may request that the authority give the person a copy of any affidavit supporting the application.
The authority must comply with any such request as soon as practicable.
(3) The court must not (unless subsection (4) applies) hear the application unless it is satisfied that the owner of the property to which the application relates has received reasonable notice of the application.
(4) The court must consider the application without notice having been given if the *responsible authority requests the court to do so.
(5) The court may, at any time before finally determining the application, direct the *responsible authority to give or publish notice of the application to a specified person or class of persons. The court may also specify the time and manner in which the notice is to be given or published.
(6) A person who claims an *interest in property may appear and adduce evidence at the hearing of the application.
27 Proceeds of crime authority may choose under which section it applies for a restraining order
To avoid doubt, the fact that a *proceeds of crime authority may apply for a *restraining order under a section of Division 1 against property in relation to an offence does not prevent a proceeds of crime authority from applying for a *restraining order under a different section of Division 1 against that property in relation to that offence.
28 Prejudice to investigations
A witness who is giving evidence relating to an application for a *restraining order is not required to answer a question or produce a document if the court is satisfied that the answer or document may prejudice the investigation of, or the prosecution of a person for, an offence.
28A Prohibition of publication of evidence—proceedings for restraining orders
(1) If a *proceeds of crime authority applies to a court for a *restraining order, the court may make an order under subsection (2).
(2) If it appears to the court to be necessary in order to prevent prejudice to the administration of justice, the court may make an order prohibiting or restricting the publication of all or any of the matters referred to in the following provisions (whichever is applicable) that are contained in an affidavit made in support of the application:
(a) subsection 17(3);
(b) subsection 18(3);
(c) paragraph 19(1)(e);
(d) subsection 20(3);
(e) subsection 20A(3).
(3) The court may make an order under subsection (2) at any time after the application is made and before it is determined.
(4) The power conferred by subsection (2) is in addition to, and is not taken to derogate from, any other power of the court.
Division 3—Excluding property from restraining orders
Note: In addition to this Division, section 44 provides for property to be excluded from a restraining order on the giving of satisfactory security.
29 Excluding property from certain restraining orders
(1) The court to which an application for a *restraining order under section 17, 18 or 19 was made must, when the order is made or at a later time, exclude a specified *interest in property from the order if:
(a) an application is made under section 30 or 31; and
(b) the court is satisfied that the relevant reason under subsection (2) or (3) for excluding the interest from the order exists.
Note: Section 32 may prevent the court from hearing the application until the responsible authority has had a reasonable opportunity to conduct an examination of the applicant.
(2) The reasons for excluding a specified *interest in property from a *restraining order are:
(a) for a restraining order under section 17 if the offence, or any of the offences, to which the order relates is a *serious offence—the interest is neither *proceeds nor an *instrument of *unlawful activity; or
(b) for a restraining order under section 17 if paragraph (a) does not apply—the interest is neither proceeds nor an instrument of the offence, or any offence, to which the order relates; or
(c) for a restraining order under section 18—the interest is neither:
(i) in any case—proceeds of unlawful activity; nor
(ii) if an offence to which the order relates is a serious offence—an *instrument of any serious offence; or
(d) for a restraining order under section 19—the interest is neither:
(i) in any case—proceeds of an *indictable offence, a *foreign indictable offence or an *indictable offence of Commonwealth concern; nor
(ii) if an offence to which the order relates is a serious offence—an *instrument of any serious offence.
Note: One of the circumstances in which property ceases to be proceeds of an offence or unlawful activity involves acquisition of the property by an innocent third party for sufficient consideration: see paragraph 330(4)(a).
(3) If the offence, or each offence, to which a *restraining order relates is a *serious offence that is an offence against section 15, 24, 29 or 31 of the Financial Transaction Reports Act 1988 or section 53, former section 59 or section 136, 137, 139, 140, 141, 142 or 143 of the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006, a further reason for excluding a specified *interest in property from the order is that each of the following requirements is met:
(a) there are no reasonable grounds to suspect that the interest is *proceeds of the offence, or any of the offences;
(b) there is a *suspect in relation to the order, but he or she has not been convicted of, or charged with, the offence, or any of the offences;
(c) the conduct in question was not for the purpose of, in preparation for, or in contemplation of, any other *indictable offence, any *State indictable offence or any *foreign indictable offence;
(d) the interest could not have been covered by a restraining order if none of the offences had been serious offences.
(4) However, the court must not exclude a specified *interest in property from a *restraining order under section 17 or 18 unless it is also satisfied that neither a *pecuniary penalty order nor a *literary proceeds order could be made against:
(a) the person who has the interest; or
(b) if the interest is not held by the *suspect but is under his or her *effective control—the suspect.
29A Excluding property from a restraining order made under section 20A
The court to which an application for a *restraining order under section 20A was made must, when the order is made or at a later time, exclude a specified *interest in property from the order if:
(a) an application is made under section 30 or 31; and
(b) the court is satisfied that the interest is held by a person other than the *suspect and is not subject to the *effective control of the suspect.
Note: Section 32 may prevent the court from hearing the application until the responsible authority has had a reasonable opportunity to conduct examinations in relation to the restraining order.
30 Application to exclude property from a restraining order before restraining order has been made
(1) A person may apply for an order under section 29 or 29A if a *restraining order that could cover property in which the person claims an *interest has been applied for, but is yet to be made.
(2) The person must give written notice to the *responsible authority of both the application and the grounds on which the exclusion is sought.
(3) The *responsible authority may appear and adduce evidence at the hearing of the application.
(4) The *responsible authority must give the person notice of any grounds on which it proposes to contest the application.
31 Application to exclude property from a restraining order after restraining order has been made
(1) A person may apply for an order under section 29 or 29A if a *restraining order that covers property in which the person claims an *interest has been made.
(1A) An application under subsection (1):
(a) must be made to the court that made the *restraining order; and
(b) may be made at any time after the restraining order is made.
(2) However, unless the court gives leave, the person cannot apply if he or she:
(a) was notified of the application for the *restraining order, but did not appear at the hearing of that application; or
(b) appeared at the hearing of that application.
(3) The court may give the person leave to apply if the court is satisfied that:
(a) if paragraph (2)(a) applies—the person had a good reason for not appearing; or
(b) if paragraph (2)(b) applies—the person now has evidence relevant to the person’s application that was not available to the person at the time of the hearing; or
(c) in either case—there are other special grounds for granting the leave.
(4) The person must give written notice to the *responsible authority of both the application and the grounds on which the exclusion is sought.
(5) The *responsible authority may appear and adduce evidence at the hearing of the application.
(6) The *responsible authority must give the person notice of any grounds on which it proposes to contest the application. However, the authority need not do so until it has had a reasonable opportunity to conduct *examinations in relation to the application.
32 Application not to be heard unless responsible authority has had reasonable opportunity to conduct an examination
The court must not hear an application to exclude specified property from the *restraining order if:
(a) the restraining order is in force; and
(b) the *responsible authority has not been given a reasonable opportunity to conduct *examinations in relation to the application.
Division 4—Giving effect to restraining orders
33 Notice of a restraining order
(1) If a court makes a *restraining order covering property that a person owns, the *responsible authority must give written notice of the order to the person.
Note: A person who was not notified of the application for a restraining order may apply to revoke the restraining order within 28 days of being notified of the order: see section 42.
(2) The *responsible authority must include a copy of the application and any affidavit supporting the application with the notice (if those documents have not already been given to the person).
(3) However, the court may order that:
(a) all or part of the application or affidavit is not to be given to the person; or
(b) the *responsible authority delay giving the notice (and the documents included with the notice) for a specified period;
if the authority requests the court to do so and the court considers that this is appropriate in order to protect the integrity of any investigation or prosecution.
(4) If the court orders the *responsible authority to delay giving the notice (and the documents included with the notice) for a specified period, the authority must give the notice as soon as practicable after the end of that period.
34 Registering restraining orders
(1) A *registration authority that keeps a register of property of a particular kind may record in the register particulars of a *restraining order covering property of that kind.
(2) The *registration authority can only do so on the application of the *responsible authority for the *restraining order.
(3) Each person who subsequently deals with the property:
(a) is taken not to be acting in good faith for the purposes of section 36; and
(b) is taken to have notice of the *restraining order for the purposes of section 37.
35 Notifying registration authorities of exclusions from or variations to restraining orders
(1) If the *responsible authority for a *restraining order covering particular property has previously applied to a *registration authority under section 34 for the recording in a register of particulars of the order, the responsible authority must notify the registration authority if:
(a) the property is no longer covered by the order because it is excluded from the order under section 29 or 29A or because the property covered by the order is varied under section 39; or
(b) a condition to which a restraining order is subject is varied under section 39.
(2) The notice must be given within a reasonable time after the order under section 39 is made.
36 Court may set aside a disposition contravening a restraining order
(1) The *responsible authority may apply to the court to set aside a disposition or dealing with property that contravenes a *restraining order if that disposition or dealing was:
(a) not for *sufficient consideration; or
(b) not in favour of a person who acted in good faith.
(2) The *responsible authority must give, to each party to the disposition or dealing, written notice of both the application and the grounds on which it seeks the setting aside of the disposition or dealing.
(3) The court may:
(a) set aside the disposition or dealing from the day it occurred; or
(b) set aside the disposition or dealing from the day on which the order is made and declare the rights of any persons who acquired *interests in the property on or after the day of the disposition or dealing and before the day on which the order is made.
37 Contravening restraining orders
(1) A person commits an offence if:
(a) the person disposes of, or otherwise deals with, property; and
(b) the person knows that, or is reckless as to the fact that, the property is covered by a *restraining order; and
(c) the disposition or dealing contravenes the order.
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
(2) A person commits an offence if:
(a) the person disposes of, or otherwise deals with, property; and
(b) the property is covered by a *restraining order; and
(c) the disposition or dealing contravenes the order; and
(d) either:
(i) particulars of the order were recorded in a register under subsection 34(1); or
(ii) the person was given notice of the order under section 33.
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
(3) Strict liability applies to paragraphs (2)(b) and (c) and subparagraph (2)(d)(i).
Division 5—Further orders
38 Court may order Official Trustee to take custody and control of property
The court may order the *Official Trustee to take custody and control of property, or specified property, covered by a *restraining order if the court is satisfied that this is required.
Note: Part 4‑1 sets out the Official Trustee’s powers over the property.
39 Ancillary orders
(1) The court that made a *restraining order, or any other court that could have made the restraining order, may make any ancillary orders that the court considers appropriate and, without limiting the generality of this, the court may make any one or more of the following orders:
(a) an order varying the property covered by the *restraining order;
(b) an order varying a condition to which the restraining order is subject;
(c) an order relating to an undertaking required under section 21;
(ca) an order directing the *suspect in relation to the restraining order to give a sworn statement to a specified person, within a specified period, setting out all of his or her *interests in property, and his or her liabilities;
(d) an order directing the owner or a previous owner of the property (including, if the owner or previous owner is a body corporate, a specified *director of the body corporate) to give a sworn statement to a specified person, within a specified period, setting out particulars of, or dealings with, the property;
(da) if the court is satisfied that there are reasonable grounds to suspect that a person (other than the owner or a previous owner) has information relevant to identifying, locating or quantifying the property—an order directing the person to give a sworn statement to a specified person, within a specified period, setting out particulars of, or dealings with, the property;
(e) if the *Official Trustee is ordered under section 38 to take custody and control of property:
(i) an order regulating the manner in which the Official Trustee may exercise its powers or perform its duties under the restraining order; or
(ii) an order determining any question relating to the property, including a question relating to the liabilities of the owner or the exercise of powers or the performance of duties of the Official Trustee; or
(iii) an order directing any person to do anything necessary or convenient to enable the Official Trustee to take custody and control of the property;
(f) an order giving directions about the operation of the restraining order and any one or more of the following:
(i) a *forfeiture order that covers the same property as the restraining order;
(ii) a *pecuniary penalty order or a *literary proceeds order that relates to the same offence as the restraining order;
(g) an order requiring a person whose property is covered by a restraining order, or who has *effective control of property covered by a restraining order, to do anything necessary or convenient to bring the property within the jurisdiction.
Note 1: If there is a pecuniary penalty order that relates to the same offence as a restraining order, the court may also order the Official Trustee to pay an amount equal to the relevant pecuniary penalty out of property covered by the restraining order: see section 282.
Note 2: If there is an unexplained wealth order that relates to a restraining order under section 20A, the court may also order the Official Trustee to pay an amount equal to the unexplained wealth amount out of property covered by the restraining order: see section 282A.
(2) The court can only make an ancillary order on the application of:
(a) the *responsible authority; or
(b) the owner of the property covered by the order; or
(c) if the *Official Trustee was ordered to take custody and control of the property—the Official Trustee; or
(d) any other person who has the leave of the court.
(3) A person who applies for an ancillary order must give written notice of the application to all other persons entitled to make such an application.
(3A) Despite subsection (3), the court must consider an application for an ancillary order without notice having been given under that subsection if:
(a) the *responsible authority requests the court to do so; and
(b) the *restraining order to which the application relates was considered, in accordance with subsection 26(4), without notice having been given.
(4) An ancillary order may be made:
(a) if it is made by the court that made the *restraining order—when making the restraining order; or
(b) in any case—at any time after the restraining order is made.
(4A) The court may, at any time before finally determining the application, direct the *responsible authority to give or publish notice of the application to a specified person or class of persons. The court may also specify the time and manner in which the notice is to be given or published.
(4B) If the court makes the ancillary order after a request under subsection (3A), the *responsible authority must give written notice to any person whom the authority reasonably believes may be affected by the order.
(5) An order that is ancillary to a *restraining order does not cease to have effect merely because the restraining order, or part of it, ceases to be in force under subsection 45(4) or (5).
Note: A restraining order ceases to be in force under those subsections if a confiscation order covering the same property or relating to the same offence is satisfied.
39A Privilege against self incrimination etc. does not apply
(1) A person is not excused from giving a sworn statement under paragraph 39(1)(ca), (d) or (da) on the grounds that to do so would tend to incriminate the person or expose the person to a penalty.
(2) However, in the case of a natural person, a sworn statement is not admissible in civil or criminal proceedings against the person who made the statement except:
(a) in criminal proceedings for giving false or misleading information; or
(b) in proceedings on an application under this Act; or
(c) in proceedings ancillary to an application under this Act; or
(d) in proceedings for enforcement of a *confiscation order.
39B Application to revoke ancillary order
(1) A person may apply to the court that made an ancillary order under section 39 to revoke the order if:
(a) the person is affected by the order; and
(b) the application for the ancillary order was heard without notice having been given under subsection 39(3) following a request under subsection 39(3A).
(2) The application must be made within 14 days after the person was notified of the ancillary order.
(3) The applicant must give written notice of the application, and the grounds on which the revocation is sought, to any person who was entitled to make the application for the ancillary order (see subsection 39(2)).
(4) The effect of the ancillary order is stayed until the court determines the application.
(5) The court may revoke the ancillary order on application under subsection (1) if it considers it appropriate to do so.
(6) The court may have regard to any matter it considers appropriate in determining the application.
(7) If:
(a) the ancillary order directed a person to do a thing within a particular period; and
(b) an application is made to revoke the order under this section;
the court may, if it considers it appropriate to do so, vary the order to extend that period by a specified period.
40 Contravening ancillary orders relating to foreign property
A person commits an offence if:
(a) the court makes an order under paragraph 39(1)(g); and
(b) the person contravenes the order.
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
Note: An order under paragraph 39(1)(g) requires a person whose property is covered by a restraining order, or who has effective control of property covered by a restraining order, to do anything necessary or convenient to bring the property within the jurisdiction.
Division 6—Duration of restraining orders
41 When a restraining order is in force
A *restraining order is in force from the time at which it is made.
42 Application to revoke a restraining order
(1) A person who was not notified of the application for a *restraining order may apply to the court to revoke the order.
(1A) The application must be made:
(a) within 28 days after the person is notified of the order; or
(b) if the person applies to the court, within that period of 28 days, for an extension of the time for applying for revocation—within such longer period, not exceeding 3 months, as the court allows.
(2) The applicant must give written notice to the *responsible authority and the *Official Trustee of both the application and the grounds on which the revocation is sought.
(3) However, the *restraining order remains in force until the court revokes the order.
(4) The *responsible authority may adduce additional material to the court relating to the application to revoke the *restraining order.
(5) The court may revoke the *restraining order if satisfied that:
(a) there are no grounds on which to make the order at the time of considering the application to revoke the order; or
(b) it is otherwise in the interests of justice to do so.
43 Notice of revocation of a restraining order
If a *restraining order is revoked under section 42, the *responsible authority must give written notice of the revocation to:
(a) the owner of any property covered by the restraining order (if the owner is known); and
(b) any other person the authority reasonably believes may have an *interest in the property.
However, the authority need not give notice to the applicant for the revocation.
44 Giving security etc. to revoke etc. a restraining order
(1) A court may:
(a) revoke a *restraining order that covers a *suspect’s property; or
(b) exclude specified property from such a restraining order;
if:
(c) the suspect applies to the court to revoke the order or exclude the property; and
(d) the suspect gives written notice of the application to the *responsible authority; and
(e) the suspect gives security that is satisfactory to the court to meet any liability that may be imposed on the suspect under this Act.
(2) A court may:
(a) revoke a *restraining order that covers the property of a person who is not a *suspect; or
(b) exclude specified property from such a restraining order;
if:
(c) the person applies to the court to revoke the order or exclude the property; and
(d) the person gives written notice of the application to the *responsible authority; and
(e) the person gives an undertaking concerning the person’s property that is satisfactory to the court.
45 Cessation of certain restraining orders
Effect on restraining orders of withdrawal of charges, acquittals etc.
(1) A *restraining order that relates to one or more offences ceases to be in force 28 days after one of the following occurs:
(a) the charge, or all of the charges, that relate to the restraining order are withdrawn;
(b) the *suspect is acquitted of the offence, or all of the offences, with which he or she was charged;
(c) the suspect’s conviction for the offence, or all of the offences, of which he or she was convicted are *quashed;
unless:
(d) there is a *confiscation order that relates to the offence; or
(e) there is an application for such a confiscation order before the court; or
(f) there is an application under:
(i) Division 6 of Part 2‑2; or
(ii) Division 4 of Part 2‑3; or
(iii) Division 5 of Part 2‑4 or 2‑5;
for confirmation of a forfeiture, or a confiscation order, that relates to the offence; or
(g) the suspect is charged with a *related offence; or
(h) a new trial is ordered in relation to the offence.
Restraining orders if there is no conviction etc.
(2) A *restraining order ceases to be in force if, within 28 days after the order was made:
(a) the *suspect has not been convicted of, or charged with, the offence, or at least one offence, to which the restraining order relates; and
(b) there is no *confiscation order or application for a confiscation order that relates to the offence.
Restraining orders and forfeiture orders etc.
(3) A *restraining order ceases to be in force in respect of property covered by the restraining order if:
(a) either:
(i) the court refuses an application for a *forfeiture order that would have covered the property; or
(ii) the court excludes the property from a forfeiture order; or
(iii) a forfeiture order that covers the property is discharged or ceases to have effect; or
(iv) the court excludes the property under section 94 from forfeiture under Part 2‑3; and
(b) in the case of a refusal of an application for a *forfeiture order:
(i) the time for an appeal against the refusal has expired without an appeal being lodged; or
(ii) an appeal against the refusal has lapsed; or
(iii) an appeal against the refusal has been dismissed and finally disposed of; and
(c) no application for another *confiscation order relating to:
(i) an offence to which the restraining order relates; or
(ii) a *related offence;
is yet to be determined; and
(d) no other confiscation order relating to such an offence is in force.
(4) A *restraining order ceases to be in force to the extent that property that it covers vests absolutely in the Commonwealth under Division 4 of Part 2‑2 or Division 1 of Part 2‑3.
Restraining orders, pecuniary penalty orders and literary proceeds orders
(5) A *restraining order that relates to one or more offences ceases to be in force in respect of property covered by the restraining order if:
(a) a *pecuniary penalty order or a *literary proceeds order relates to that offence or those offences; and
(b) one or more of the following occurs:
(i) the pecuniary penalty order or the literary proceeds order is satisfied;
(ii) the property is sold or disposed of to satisfy the pecuniary penalty order or literary proceeds order;
(iii) the pecuniary penalty order or the literary proceeds order is discharged or ceases to have effect.
Restraining orders and instruments owned by third parties
(6) Despite subsection (1), if:
(a) a *restraining order covers property of a person who is not a *suspect; and
(b) the property is an *instrument of an offence to which the order relates; and
(c) the property is not *proceeds of such an offence; and
(ca) the property is not an instrument of a *serious offence to which the order relates; and
(d) the property is not subject to the *effective control of another person who is a suspect in relation to the order;
the restraining order ceases to be in force in respect of that property if the suspect has not been charged with the offence or a *related offence within 28 days after the restraining order is made.
Restraining orders and charges relating to unexplained wealth orders
(6A) If:
(a) a *restraining order referred to in paragraph 179SA(1)(b) would otherwise cease to be in force under this section at a particular time; but
(b) a charge on the property against which the restraining order was made is created by subsection 179SA(1) before that time;
then despite anything in subsection (1), (2), (3) or (6) of this section, the restraining order does not cease to be in force until the charge ceases to have effect in respect of the property in accordance with subsection 179SA(2).
Section does not apply to unexplained wealth restraining orders
(7) To avoid doubt, this section does not apply to a *restraining order made under section 20A.
45A Cessation of restraining orders relating to unexplained wealth
Restraining orders made before application for unexplained wealth order
(1) A *restraining order made under section 20A ceases to be in force if:
(a) no application for an *unexplained wealth order had been made in relation to the *suspect to whom the restraining order relates before the restraining order was made; and
(b) no such application has been made in relation to the suspect within 28 days after the restraining order was made.
(2) A *restraining order made under section 20A ceases to be in force if:
(a) an application for an *unexplained wealth order is made in relation to the *suspect to whom the restraining order relates; and
(b) the application is made within 28 days after the making of the restraining order; and
(c) the court refuses to make either:
(i) a *preliminary unexplained wealth order in connection with the application for the unexplained wealth order; or
(ii) the unexplained wealth order itself; and
(d) one of the following applies:
(i) the time for an appeal against the refusal has expired without an appeal being lodged;
(ii) an appeal against the refusal has lapsed;
(iii) an appeal against the refusal has been dismissed and finally disposed of.
(3) A *restraining order made under section 20A ceases to be in force if:
(a) an application for an *unexplained wealth order is made in relation to the *suspect to whom the restraining order relates; and
(b) the application is made within 28 days after the making of the restraining order; and
(c) the court makes the unexplained wealth order; and
(d) either:
(i) the unexplained wealth order is complied with; or
(ii) an appeal against the unexplained wealth order has been upheld and finally disposed of.
Restraining orders made after application for unexplained wealth order
(3A) A *restraining order made under section 20A ceases to be in force if:
(a) the restraining order was made at the same time as or after an application for an *unexplained wealth order is made in relation to the *suspect to whom the restraining order relates; and
(b) the court refuses to make either:
(i) a *preliminary unexplained wealth order in connection with the application for the unexplained wealth order; or
(ii) the unexplained wealth order itself; and
(c) one of the following applies:
(i) the time for an appeal against the refusal has expired without an appeal being lodged;
(ii) an appeal against the refusal has lapsed;
(iii) an appeal against the refusal has been dismissed and finally disposed of.
(3B) A *restraining order made under section 20A ceases to be in force if:
(a) the restraining order was made at the same time as or after an application for an *unexplained wealth order is made in relation to the *suspect to whom the restraining order relates; and
(b) the court makes the unexplained wealth order (whether before or after the restraining order was made or applied for); and
(c) either:
(i) the unexplained wealth order is complied with; or
(ii) an appeal against the unexplained wealth order has been upheld and finally disposed of.
Court may make costs order if restraining order ceases
(4) If a *restraining order ceases under subsection (1), (2) or (3A), the court may, on application by a person with an *interest in the property covered by the restraining order, make any order as to costs it considers appropriate, including costs on an indemnity basis.
Part 2‑2—Forfeiture orders
46 Simplified outline of this Part
Forfeiture orders can be made, forfeiting property to the Commonwealth, if certain offences have been committed. (It is not always a requirement that a person has been convicted of such an offence.)
Orders are made on the application of a proceeds of crime authority (the Commissioner of the Australian Federal Police or the DPP). Other orders can be made to reduce the effect of forfeiture orders on grounds such as hardship to the person’s dependants.
Note: If a person is convicted of a serious offence, forfeiture can be automatic under Part 2‑3. There is no need for a forfeiture order.
Division 1—Making forfeiture orders
47 Forfeiture orders—conduct constituting serious offences
(1) A court with *proceeds jurisdiction must make an order that property specified in the order is forfeited to the Commonwealth if:
(a) the *responsible authority for a *restraining order under section 18 that covers the property applies for an order under this subsection; and
(b) the restraining order has been in force for at least 6 months; and
(c) the court is satisfied that a person whose conduct or suspected conduct formed the basis of the restraining order engaged in conduct constituting one or more *serious offences.
Note: The order can be made before the end of the period of 6 months referred to in paragraph (1)(b) if it is made as a consent order: see section 316.
(2) A finding of the court for the purposes of paragraph (1)(c) need not be based on a finding as to the commission of a particular offence, and can be based on a finding that some *serious offence or other was committed.
(3) The raising of a doubt as to whether a person engaged in conduct constituting a *serious offence is not of itself sufficient to avoid a finding by the court under paragraph (1)(c).
Refusal to make a forfeiture order
(4) Despite subsection (1), the court may refuse to make an order under that subsection relating to property that the court is satisfied:
(a) is an *instrument of a *serious offence other than a *terrorism offence; and
(b) is not *proceeds of an offence;
if the court is satisfied that it is not in the public interest to make the order.
48 Forfeiture orders—convictions for indictable offences
(1) A court with *proceeds jurisdiction must make an order that property specified in the order is forfeited to the Commonwealth if:
(a) a *proceeds of crime authority applies for the order; and
(b) a person has been convicted of one or more *indictable offences; and
(c) the court is satisfied that the property to be specified in the order is *proceeds of one or more of the offences.
(2) A court with *proceeds jurisdiction may make an order that property specified in the order is forfeited to the Commonwealth if:
(a) a *proceeds of crime authority applies for the order; and
(b) a person has been convicted of one or more *indictable offences; and
(c) subsection (1) does not apply; and
(d) the court is satisfied that the property to be specified in the order is an *instrument of one or more of the offences.
(3) In considering whether it is appropriate to make an order under subsection (2) in respect of particular property, the court may have regard to:
(a) any hardship that may reasonably be expected to be caused to any person by the operation of the order; and
(b) the use that is ordinarily made, or was intended to be made, of the property to be specified in the order; and
(c) the gravity of the offence or offences concerned.
Note: Section 52 limits the court’s power to make a forfeiture order if one or more of the person’s convictions were due to the person absconding.
49 Forfeiture orders—property suspected of being proceeds of indictable offences etc.
(1) A court with *proceeds jurisdiction must make an order that property specified in the order is forfeited to the Commonwealth if:
(a) the *responsible authority for a *restraining order under section 19 that covers the property applies for an order under this subsection; and
(b) the restraining order has been in force for at least 6 months; and
(c) the court is satisfied that one or more of the following applies:
(i) the property is *proceeds of one or more *indictable offences;
(ii) the property is proceeds of one or more *foreign indictable offences;
(iii) the property is proceeds of one or more *indictable offences of Commonwealth concern;
(iv) the property is an instrument of one or more *serious offences; and
(e) the court is satisfied that the authority has taken reasonable steps to identify and notify persons with an *interest in the property.
(2) A finding of the court for the purposes of paragraph (1)(c):
(a) need not be based on a finding that a particular person committed any offence; and
(b) need not be based on a finding as to the commission of a particular offence, and can be based on a finding that some offence or other of a kind referred to in paragraph (1)(c) was committed.
(3) Paragraph (1)(c) does not apply if the court is satisfied that:
(a) no application has been made under Division 3 of Part 2‑1 for the property to be excluded from the *restraining order; or
(b) any such application that has been made has been withdrawn.
Refusal to make a forfeiture order
(4) Despite subsection (1), the court may refuse to make an order under that subsection relating to property that the court is satisfied:
(a) is an *instrument of a *serious offence other than a *terrorism offence; and
(b) is not *proceeds of an offence;
if the court is satisfied that it is not in the public interest to make the order.
50 Existence of other confiscation orders
The court’s power to make a *forfeiture order in relation to an offence is not affected by the existence of another *confiscation order in relation to that offence.
Note: There are restrictions on a proceeds of crime authority applying for forfeiture orders if previous applications for forfeiture etc. have already been made: see section 60.
51 Acquittals do not affect forfeiture orders under section 47 or 49
The fact that a person has been acquitted of an offence with which the person has been charged does not affect the court’s power to make a *forfeiture order under section 47 or 49 in relation to the offence.
52 Making of forfeiture order if person has absconded
If, because of paragraph 331(1)(d), a person is taken to have been convicted of an *indictable offence, a court must not make a *forfeiture order relating to the person’s conviction unless:
(a) the court is satisfied, on the balance of probabilities, that the person has *absconded; and
(b) either:
(i) the person has been committed for trial for the offence; or
(ii) the court is satisfied, having regard to all the evidence before the court, that a reasonable jury, properly instructed, could lawfully find the person guilty of the offence.
Division 2—Other relevant matters when a court is considering whether to make forfeiture orders
54 Presumption in certain cases that property is an instrument of an offence
If:
(a) a *proceeds of crime authority applies for:
(i) a *forfeiture order under section 47 or 49 against particular property in relation to a person’s commission of a *serious offence; or
(ii) a forfeiture order under section 48 against particular property in relation to a person’s conviction of an *indictable offence; and
(b) evidence is given, at the hearing of the application, that the property was in the person’s possession at the time of, or immediately after, the person committed the offence;
then:
(c) if no evidence is given that tends to show that the property was not used in, or in connection with, the commission of the offence—the court must presume that the property was used in, or in connection with, the commission of the offence; or
(d) in any other case—the court must not make a forfeiture order against the property unless it is satisfied that the property was used or intended to be used in, or in connection with, the commission of the offence.
55 Forfeiture orders can extend to other interests in property
(1) In specifying an *interest in property in a *forfeiture order, the court may also specify other interests in the property (regardless of whose they are) if:
(a) the amount received from disposing of the combined interests would be likely to be greater than the amount received from disposing of each of the interests separately; or
(b) disposing of the interests separately would be impracticable or significantly more difficult than disposing of the combined interests.
(2) If the court so specifies other *interests in the *forfeiture order, the court may make such ancillary orders as it thinks fit for the protection of a person having one or more of those other interests. These ancillary orders may include:
(a) an order directing the Commonwealth to pay the person a specified amount as the value of the person’s interest in the property; or
(b) an order directing that specified other interests in the property be transferred to the person.
(3) In deciding whether to make an ancillary order, the court must have regard to:
(a) the nature, extent and value of the person’s *interest in the property concerned; and
(b) if the court is aware that any other person claims an interest in the property—the nature, extent and value of the interest claimed; and
(c) any other matter that the court considers relevant.
(4) For the purposes of an order described in paragraph (2)(a), an amount may be specified wholly or partly by reference to a specified proportion of the difference between:
(a) the amount received from disposing of the combined interests specified in the *forfeiture order; and
(b) the sum of any payments of the kind referred to in paragraph 70(1)(b) in connection with the forfeiture order.
56 Forfeiture orders must specify the value of forfeited property
The court must specify, in any *forfeiture order it makes, the amount it considers to be the value, at the time the order is made, of the property (other than money) specified in the order.
57 Court may make orders relating to buying back forfeited property
(1) If:
(a) a court makes a *forfeiture order against property; and
(b) a person who claims to have had an *interest in the property before the forfeiture order was made has made an application under section 57A for an order under this section; and
(c) the court is satisfied that the person had the interest immediately before the forfeiture order was made; and
(d) the court is satisfied that the person is not a *suspect in relation to the forfeiture order; and
(e) in a case where the property was covered by a *restraining order when the forfeiture order was made—the court is satisfied that the person is not a suspect in relation to the restraining order; and
(f) in a case where the forfeiture order was made under section 47 or 48—the court is satisfied that, when the conduct that is the subject of the forfeiture order occurred, the person had no knowledge of the conduct; and
(g) in a case where the property was *proceeds of an offence or an *instrument of an offence—the court is satisfied that, when the property became proceeds of an offence or an instrument of an offence, the person had no knowledge of the conduct constituting the offence; and
(h) the court is satisfied that, if the interest were to be transferred to the person under section 89:
(i) the amount paid to the Commonwealth under paragraph 89(1)(c) would not be property that is covered by subsection (6); and
(ii) if the whole or a part of the amount paid to the Commonwealth under paragraph 89(1)(c) would be borrowed by the person under a loan—the person’s financial circumstances are such that the person will be able to repay the loan, meet the person’s eligible living expenses and meet any eligible debts of the person, using property that is not covered by subsection (6); and
(i) the court is satisfied that:
(i) it would not be contrary to the public interest for the interest to be transferred to the person; and
(ii) there is no other reason why the interest should not be transferred to the person;
the court may make an order:
(j) declaring the nature, extent and value (as at the time when the order is made under this subsection) of the interest; and
(k) declaring that the interest may be excluded, under section 89, from the operation of the forfeiture order.
Note: Money can be property.
(2) For the purposes of this section, it is immaterial whether the loan mentioned in subparagraph (1)(h)(ii) was made under an arrangement entered into before or after the application mentioned in paragraph (1)(b) was made.
(3) For the purposes of this section, loan includes anything that may reasonably be regarded as equivalent to a loan, and borrow has a corresponding meaning.
(4) For the purposes of this section, each of the following are eligible living expenses of the person:
(a) the person’s reasonable living expenses;
(b) the reasonable living expenses of any of the *dependants of the person;
(c) the reasonable business expenses of the person.
(5) For the purposes of this section, an eligible debt of the person is a debt incurred in good faith by the person.
(6) This subsection covers any of the following property:
(a) property that is wholly or partly derived or realised by the person, directly or indirectly, from *unlawful activity;
(b) property that is used in, or in connection with, the commission of unlawful activity;
(c) property that is intended to be used in, or in connection with, the commission of unlawful activity.
57A Applying for an order under section 57
Before a forfeiture order has been made
(1) A person may apply to a court for an order under section 57 in relation to an *interest in property if an application for a *forfeiture order that could specify property in which the person claims that interest has been made to the court, but the forfeiture order is yet to be made.
After a forfeiture order has been made
(2) A person who claims to have had an *interest in property specified in a *forfeiture order immediately before the forfeiture order was made may, at any time after the forfeiture order is made, apply to the court that made the forfeiture order for an order under section 57 in relation to the interest.
(3) However, unless the court gives leave, the person cannot apply under subsection (2) if the person:
(a) was notified of the application for the *forfeiture order, but did not make an application under subsection (1) before the forfeiture order was made; or
(b) appeared at the hearing of the application for the forfeiture order.
(4) The court may give the person leave to apply under subsection (2) if the court is satisfied that:
(a) if the person was notified of the application for the *forfeiture order, but did not make an application under subsection (1) before the forfeiture order was made—the person had a good reason for not making an application under subsection (1) before the forfeiture order was made; or
(b) in any case:
(i) the person now has evidence relevant to the making of the section 57 order that was not available to the person at the time the forfeiture order was made; or
(ii) there are other special grounds for granting the leave.
(5) However, the court must not hear an application under subsection (2) if:
(a) the *Official Trustee has taken any action in relation to the property under section 70; and
(b) it would not be practicable for the court to make an order in relation to the interest under section 57.
Other matters
(6) An applicant under subsection (1) or (2) must give written notice to the *responsible authority of both the application and the grounds on which the order is sought.
(7) The *responsible authority may appear and adduce evidence at the hearing of an application under subsection (1) or (2).
(8) To avoid doubt, the *responsible authority may represent the Commonwealth in proceedings relating to an application under subsection (1) or (2).
(9) The *responsible authority must give an applicant under subsection (1) or (2) notice of any grounds on which it proposes to contest the application. However, the authority need not do so until it has had a reasonable opportunity to conduct *examinations in relation to the application.
(10) An application under subsection (1) or (2) must not be heard until the *responsible authority has had a reasonable opportunity to conduct *examinations in relation to the application.
58 The court may also make supporting directions
(1) If a court makes a *forfeiture order, the court has power to give all directions that are necessary or convenient for giving effect to the order.
(2) This includes, for a *forfeiture order specifying *registrable property, a direction to an officer of the court to do anything necessary and reasonable to obtain possession of any document necessary for the transfer of the property.
Division 3—How forfeiture orders are obtained
59 Proceeds of crime authority may apply for a forfeiture order
(1) A *proceeds of crime authority may apply for a *forfeiture order.
(2) If the application relates to a person’s conviction of an *indictable offence, the application must be made before the end of the period of 6 months after the *conviction day.
60 Additional application for a forfeiture order
(1) A *proceeds of crime authority cannot, unless the court gives leave, apply for a *forfeiture order under a section of Division 1 in relation to an offence if:
(a) an application has previously been made:
(i) under this Division for an order under the same section of Division 1; or
(ii) under another law of the Commonwealth (other than Division 1); or
(iii) under a law of a *non‑governing Territory;
for the forfeiture or condemnation of the property in relation to the offence; and
(b) the application has been finally determined on the merits.
(2) The court must not give leave unless it is satisfied that:
(a) the property to which the new application relates was identified only after the first application was determined; or
(b) necessary evidence became available only after the first application was determined; or
(c) it is in the interests of justice to grant the leave.
(3) To avoid doubt:
(a) a *proceeds of crime authority may apply for a *forfeiture order under a section of Division 1 against property in relation to an offence even though an application has previously been made under a different section of Division 1 for forfeiture of that property in relation to that offence; and
(b) a proceeds of crime authority may apply for a forfeiture order against property in relation to an offence even though an application has previously been made for a *pecuniary penalty order or a *literary proceeds order in relation to that offence.
61 Notice of application
(1) The *responsible authority must give written notice of an application for a *forfeiture order to:
(a) if the order is sought relating to a person’s conviction of an offence—the person; and
(b) any person who claims an *interest in property covered by the application; and
(c) any person whom the authority reasonably believes may have an interest in that property.
(2) The court hearing the application may, at any time before finally determining the application, direct the *responsible authority to give or publish notice of the application to a specified person or class of persons. The court may also specify the time and manner in which the notice is to be given or published.
62 Amending an application
(1) The court hearing an application for a *forfeiture order may amend the application:
(a) on application by the *responsible authority; or
(b) with the consent of the authority.
(2) However, the court must not amend the application to include additional property in the application unless:
(a) the court is satisfied that:
(i) the property was not reasonably capable of identification when the application was originally made; or
(ii) necessary evidence became available only after the application was originally made; or
(b) the *forfeiture order applied for is an order under section 47 or 49 and the court is satisfied that:
(i) including the additional property in the application for the order might have prejudiced the investigation of, or the prosecution of a person for, an offence; or
(ii) it is for any other reason appropriate to grant the application to amend.
(3) On applying for an amendment to include additional property in the application, the *responsible authority must give written notice of the application to amend to any person whom the authority reasonably believes may have an *interest in that additional property.
(4) If the *forfeiture order applied for is an order under section 48, any person who claims an *interest in that additional property may appear and adduce evidence at the hearing of the application to amend.
63 Court may dispense with notice requirements if person has absconded
The court to which an application for a *forfeiture order is made in relation to an offence may, on application by the *responsible authority, dispense with the requirements to give notice to a person under subsections 61(1) and 62(3) if the court is satisfied that the person has *absconded in connection with the offence.
64 Procedure on application
(1) Any person who claims an *interest in property covered by an application for a *forfeiture order may appear and adduce evidence at the hearing of the application.
(2) The court may, in determining the application, have regard to:
(a) the transcript of any proceeding against the person for an offence that constitutes *unlawful activity; and
(b) the evidence given in any such proceeding.
(3) The court may still make a *forfeiture order if a person entitled to be given notice of the relevant application fails to appear at the hearing of the application.
65 Applications to courts before which persons are convicted
If an application for a *forfeiture order is made to a court before which a person was convicted of an *indictable offence:
(a) the application may be dealt with by the court; and
(b) any power in relation to the relevant order may be exercised by the court;
whether or not the court is constituted in the same way in which it was constituted when the person was convicted of the indictable offence.
Division 4—Effect of forfeiture orders
66 What property is forfeited and when—general rule
Property specified in a *forfeiture order vests absolutely in the Commonwealth at the time the order is made.
67 First exception—registrable property
(1) Despite section 66, if property specified in the *forfeiture order is *registrable property:
(a) that property vests in equity in the Commonwealth but does not vest in the Commonwealth at law until the applicable registration requirements have been complied with; and
(b) the *responsible authority has power, on behalf of the Commonwealth, to do anything necessary or convenient to give notice of, or otherwise protect, the Commonwealth’s equitable interest in that property; and
(c) the Commonwealth is entitled to be registered as the owner of that property; and
(d) the *Official Trustee has power, on behalf of the Commonwealth, to do, or authorise the doing of, anything necessary or convenient to obtain the registration of the Commonwealth as the owner.
(2) Any action by the *responsible authority under paragraph (1)(b) is not a dealing for the purposes of subsection 69(1).
(3) The *Official Trustee’s powers under paragraph (1)(d) include executing any instrument required to be executed by a person transferring an *interest in property of that kind.
68 Second exception—if a joint owner dies before the order was made
(1) Despite section 66, if a person:
(a) was, immediately before his or her death, the joint owner of property specified in the *forfeiture order; but
(b) died before the order was made, but:
(i) after the *responsible authority applied for the order; or
(ii) while a *restraining order covering the property was in force;
that property is taken to have vested in the Commonwealth immediately before the person’s death.
(2) Any such *restraining order is also taken to have continued to apply to the property as if the person had not died.
68A Third exception—property located outside Australia
(1) Despite section 66, if property specified in a *forfeiture order is property located outside *Australia:
(a) that property vests in equity in the Commonwealth; and
(b) that property only vests in the Commonwealth at law to the extent permitted under the law in force in the place where that property is located; and
(c) the *responsible authority has power, on behalf of the Commonwealth, to do anything necessary or convenient to:
(i) give notice of, or otherwise protect, the Commonwealth’s equitable interest in that property; or
(ii) arrange for the enforcement of, or give effect to, the forfeiture order.
Note: The following is an example of action by the responsible authority under subparagraph (1)(c)(ii): arranging for a request under section 32 of the *Mutual Assistance Act in relation to the enforcement of the forfeiture order.
(2) Any action by the *responsible authority under subparagraph (1)(c)(i) is not a dealing for the purposes of subsection 69(1).
(3) Despite section 66 and subsection (1) of this section, if:
(a) property specified in a *forfeiture order is property located outside *Australia; and
(b) under the law in force in the place where that property is located, that property vests in a person;
that property vests in that person under that law.
(4) Subsection (3) does not affect any equitable interest vested in the Commonwealth by paragraph (1)(a).
69 When can the Commonwealth begin dealing with forfeited property?
(1) The Commonwealth, and persons acting on its behalf, can only dispose of, or otherwise deal with, property specified in a *forfeiture order after, and only if the order is still in force at, the later of the following times:
(a) when:
(i) if the period provided for lodging an appeal against the order has ended without such an appeal having been lodged—that period ends; or
(ii) if an appeal against the order has been lodged—the appeal lapses or is finally determined;
(b) if the order was made in relation to a person’s conviction of an offence—when:
(i) if the period provided for lodging an appeal against the conviction has ended without such an appeal having been lodged—that period ends; or
(ii) if an appeal against the conviction has been lodged—the appeal lapses or is finally determined.
(2) However, such disposals and dealings may occur earlier with the leave of the court and in accordance with any directions of the court.
(3) For the purposes of paragraph (1)(b):
(a) if the person is to be taken to have been convicted of the offence because of paragraph 331(1)(b)—an appeal against the finding of the person guilty of the offence is taken to be an appeal against the conviction; and
(b) if the person is to be taken to have been convicted of the offence because of paragraph 331(1)(c)—an appeal against the person’s conviction of the other offence referred to in that paragraph is taken to be an appeal against the conviction.
Controlled property
(4) If property covered by a *forfeiture order is controlled property for the purposes of Division 3 of Part 4‑1, this section does not prevent or limit the exercise of powers or performance of duties by the *Official Trustee under that Division.
70 How must the Commonwealth deal with forfeited property?
(1) If the *forfeiture order is still in force at the later time mentioned in subsection 69(1), the *Official Trustee must, on the Commonwealth’s behalf and as soon as practicable:
(a) dispose of any property specified in the order that is not money; and
(b) apply:
(i) any amounts received from that disposal; and
(ii) any property specified in the order that is money;
to payment of its remuneration and other costs, charges and expenses of the kind referred to in subsection 288(1) payable to or incurred by it in connection with the disposal and with the *restraining order that covered the property; and
(ba) apply:
(i) any amounts received from that disposal; and
(ii) any property specified in the order that is money;
to payment of an *associated GST entity’s liability (if any) to pay *GST in connection with the disposal; and
(c) credit the remainder of the money and amounts received to the *Confiscated Assets Account as required by section 296.
(2) However, if the *Official Trustee is required to deal with property specified in a *forfeiture order but has not yet begun:
(a) the Minister; or
(b) a *senior Departmental officer authorised by the Minister for the purposes of this subsection;
may direct that the property be alternatively disposed of, or otherwise dealt with, as specified in the direction.
(3) Such a direction could be that property is to be disposed of in accordance with the provisions of a specified law.
Note: The quashing of a conviction of an offence relating to a forfeiture may prevent things being done under this section: see section 86.
71 Dealings with forfeited property
A person commits an offence if:
(a) the person knows that a *forfeiture order has been made in respect of *registrable property; and
(b) the person disposes of, or otherwise deals with, the property before the Commonwealth’s interest has been registered on the appropriate register; and
(c) the forfeiture order has not been discharged.
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
Division 4A—Controlled property
71A Official Trustee may take custody and control of forfeited property
(1) The *Official Trustee may take custody and control of any or all of the property covered by a *forfeiture order.
Note: Part 4‑1 sets out the Official Trustee’s powers over the property.
(2) If the *Official Trustee decides to take custody and control of property under subsection (1), the court that made the *forfeiture order that covers the property may make either or both of the following orders:
(a) an order determining any question relating to the exercise of powers conferred on the Official Trustee under Division 3 of Part 4‑1, or the performance of duties imposed on the Official Trustee under that Division, to the extent that those powers or duties relate to the property;
(b) an order directing any person to do anything necessary or convenient to enable the Official Trustee to take custody and control of the property.
(3) The court may only make an order under subsection (2) on the application of:
(a) the *responsible authority; or
(b) the person who, immediately before the making of the *forfeiture order, was the owner of the property covered by that order; or
(c) the *Official Trustee; or
(d) any other person who has the leave of the court.
Division 5—Reducing the effect of forfeiture orders
Subdivision A—Relieving hardship
72 Relieving certain dependants from hardship
(1) The court making a *forfeiture order specifying a *person’s property must make another order directing the Commonwealth to pay a specified amount to a *dependant of the person if:
(a) the forfeiture order is not to be made under section 48; and
(b) the court is satisfied that:
(i) the forfeiture order would cause hardship to the dependant; and
(ii) the specified amount would relieve that hardship; and
(iii) if the dependant is aged at least 18 years—the dependant had no knowledge of the person’s conduct that is the subject of the forfeiture order.
(2) The specified amount must not exceed the difference between:
(a) what the court considers is likely to be the amount received from disposing of the *person’s property under the *forfeiture order; and
(b) what the court considers is likely to be the sum of any payments of the kind referred to in paragraph 70(1)(b) in connection with the forfeiture order.
(3) An order under this section may relate to more than one of the person’s *dependants.
Subdivision B—Excluding property from a forfeiture order
73 Making exclusion orders
(1) A court that made a *forfeiture order, or that is hearing, or is to hear, an application (a forfeiture application) for a forfeiture order, must make an order excluding a specified *interest in property from forfeiture (an exclusion order) if:
(a) a person applies for the exclusion order; and
(b) the forfeiture order, or the forfeiture application, specifies property in which the applicant has an interest; and
(c) if the forfeiture order was (or the forfeiture order applied for would be) made under section 47 or 49—the court is satisfied that the applicant’s interest in the property is neither of the following:
(i) *proceeds of *unlawful activity;
(ii) if an offence on which the order was (or would be) based is a *serious offence—an instrument of any serious offence; and
(d) if the forfeiture order was (or the forfeiture order applied for would be) made under section 48—the court is satisfied that the applicant’s interest in the property is neither proceeds nor an instrument of any of the offences to which the forfeiture order or forfeiture application relates.
(2) An *exclusion order must:
(a) specify the nature, extent and value (at the time of making the order) of the *interest concerned; and
(b) direct that the interest be excluded from the operation of the relevant *forfeiture order; and
(c) if the interest has vested (in law or equity) in the Commonwealth under this Part and is yet to be disposed of—direct the Commonwealth to transfer the interest to the applicant; and
(d) if the interest has vested (in law or equity) in the Commonwealth under this Part and has been disposed of—direct the Commonwealth to pay the applicant an amount equal to the value specified under paragraph (a).
74 Applying for exclusion orders
Before a forfeiture order has been made
(1) A person may apply for an *exclusion order if a *forfeiture order that could specify property in which the person claims an *interest has been applied for, but is yet to be made.
After a forfeiture order has been made
(2) A person who claims an *interest in property specified in a *forfeiture order may, at any time after the forfeiture order is made, apply to the court that made the forfeiture order for an *exclusion order.
(3) However, unless the court gives leave, the person cannot apply for an *exclusion order if he or she:
(a) was notified of the application for the *forfeiture order, but did not appear at the hearing of that application; or
(b) appeared at the hearing of that application.
(4) The court may give the person leave to apply if the court is satisfied that:
(a) if paragraph (3)(a) applies—the person had a good reason for not appearing; or
(b) if paragraph (3)(b) applies—the person now has evidence relevant to the person’s application that was not available to the person at the time of the hearing; or
(c) in either case—there are other special grounds for granting the leave.
75 Giving notice of matters relevant to an application
(1) An applicant for an *exclusion order must give written notice to the *responsible authority of both the application and the grounds on which the order is sought.
Note: The responsible authority in relation to an application for an exclusion order is the authority responsible for the forfeiture order or forfeiture application referred to in section 73 (making exclusion orders).
(2) The *responsible authority may appear and adduce evidence at the hearing of the application.
(3) The *responsible authority must give the applicant notice of any grounds on which it proposes to contest the application. However, the authority need not do so until it has had a reasonable opportunity to conduct *examinations in relation to the application.
76 When an application can be heard
An application for an *exclusion order must not be heard until the *responsible authority has had a reasonable opportunity to conduct *examinations in relation to the application.
Subdivision C—Compensating for proportion of property not derived or realised from commission of any offence
77 Making compensation orders
(1) A court that made a *forfeiture order, or that is hearing, or is to hear, an application for a forfeiture order, must make an order under subsection (2) (a compensation order) if:
(a) a person (the applicant) has applied for a compensation order; and
(b) the court is satisfied that the applicant has an *interest in property specified in the forfeiture order or in the application for the forfeiture order; and
(c) the court is satisfied that a proportion of the value of the applicant’s interest was not derived or realised, directly or indirectly, from the commission of any offence; and
(d) the court is satisfied that the applicant’s interest is not an instrument of any offence; and
(e) in the case of a court that is hearing or is to hear an application for a forfeiture order—the court makes the forfeiture order.
(2) A *compensation order must:
(a) specify the proportion found by the court under paragraph (1)(c); and
(b) direct the Commonwealth, once the property has vested absolutely in it, to:
(i) if the property has not been disposed of—dispose of the property; and
(ii) pay the applicant an amount equal to that proportion of the difference between the amount received from disposing of the property and the sum of any payments of the kind referred to in paragraph 70(1)(b) in connection with the *forfeiture order.
78 Application for compensation orders
Before a forfeiture order has been made
(1) A person may apply to a court for a *compensation order if an application for a *forfeiture order that could specify property in which the person claims an *interest has been made to the court, but the forfeiture order is yet to be made.
After a forfeiture order has been made
(2) A person who claims an *interest in property specified in a *forfeiture order may, at any time after the forfeiture order is made, apply to the court that made the forfeiture order for a *compensation order.
(3) However, unless the court gives leave, the person cannot apply under subsection (2) if he or she:
(a) was notified of the application for the *forfeiture order, but did not make an application under subsection (1) before the forfeiture order was made; or
(b) appeared at the hearing of the application for the forfeiture order.
(4) The court may give the person leave to apply under subsection (2) if the court is satisfied that:
(a) if paragraph (3)(a) applies—the person had a good reason for not making an application under subsection (1) before the *forfeiture order was made; or
(b) in either case:
(i) the person now has evidence relevant to the making of the *compensation order that was not available to the person at the time the forfeiture order was made; or
(ii) there are other special grounds for granting the leave.
79 Giving notice of matters relevant to an application
(1) An applicant for a *compensation order must give written notice to the *responsible authority of both the application and the grounds on which the order is sought.
Note: The responsible authority in relation to an application for a compensation order is the authority responsible for the forfeiture order or forfeiture application referred to in section 77 (making compensation orders).
(2) The *responsible authority may appear and adduce evidence at the hearing of the application.
(3) The *responsible authority must give the applicant notice of any grounds on which it proposes to contest the application. However, the authority need not do so until it has had a reasonable opportunity to conduct *examinations in relation to the application.
79A When an application can be heard
An application for a *compensation order must not be heard until the *responsible authority has had a reasonable opportunity to conduct *examinations in relation to the application.
Division 6—The effect on forfeiture orders of acquittals and quashing of convictions
80 Forfeiture order made under section 47 or 49 unaffected by acquittal or quashing of conviction
A *forfeiture order made under section 47 or 49 against a person in relation to an offence is not affected if:
(a) having been charged with the offence, the person is acquitted; or
(b) the person is convicted of the offence and the conviction is subsequently *quashed.
81 Discharge of forfeiture order made under section 48 on quashing of conviction
(1) A *forfeiture order made under section 48 in relation to a person’s conviction of an offence is discharged if:
(a) the person’s conviction of the offence is subsequently *quashed (whether or not the order relates to the person’s conviction of other offences that have not been quashed); and
(b) the *responsible authority does not, within 14 days after the conviction is quashed, apply to the court that made the order for the order to be confirmed.
(2) However, unless and until a court decides otherwise on such an application, the *quashing of the conviction does not affect the *forfeiture order:
(a) for 14 days after the conviction is quashed; and
(b) if the *responsible authority makes such an application.
82 Notice of application for confirmation of forfeiture order
(1) The *responsible authority must give written notice of an application for confirmation of the *forfeiture order to:
(a) the person whose conviction was *quashed; and
(b) any person who claims, or prior to the forfeiture claimed, an *interest in property covered by the order; and
(c) any person whom the authority reasonably believes may have had an interest in that property before the forfeiture.
Note: If the authority applies for confirmation of a forfeiture order, it can also apply for an examination order under Part 3‑1.
(2) The court hearing the application may, at any time before finally determining the application, direct the *responsible authority to give or publish notice of the application to a specified person or class of persons. The court may also specify the time and manner in which the notice is to be given or published.
83 Procedure on application for confirmation of forfeiture order
(1) Any person who claims an *interest in property covered by the *forfeiture order may appear and adduce evidence at the hearing of the application for confirmation of the order.
(2) The court may, in determining the application, have regard to:
(a) the transcript of any proceeding against the person for:
(i) the offence of which the person was convicted; or
(ii) if the person was taken to be convicted of that offence because of paragraph 331(1)(c)—the other offence referred to in that paragraph;
including any appeals relating to the conviction; and
(b) the evidence given in any such proceeding.
84 Court may confirm forfeiture order
(1) The court may confirm the *forfeiture order if the court is satisfied that:
(a) it could have made a forfeiture order under section 47 in relation to the offence in relation to which the person’s conviction was *quashed if, when the *responsible authority applied for an order under section 48, it had instead applied for an order under section 47; or
(b) it could have made a forfeiture order under section 49 in relation to the offence in relation to which the person’s conviction was quashed if, when the authority applied for an order under section 48, it had instead applied for an order under section 49.
(2) For the purposes of paragraphs (1)(a) and (b), the requirement in paragraph 47(1)(b) or 49(1)(b) (as the case requires) is taken to be satisfied.
85 Effect of court’s decision on confirmation of forfeiture order
(1) If the court confirms the *forfeiture order under paragraph 84(1)(a), the order is taken not to be affected by the *quashing of the person’s conviction of the offence.
(2) If the court confirms the *forfeiture order under paragraph 84(1)(b):
(a) to the extent that the order covers property that is:
(i) in any case—*proceeds of the offence; or
(ii) if the offence is a *serious offence—an *instrument of the offence;
the order is taken not to be affected by the *quashing of the person’s conviction of the offence; but
(b) to the extent that the order covers property that is:
(i) in any case—not proceeds of the offence; and
(ii) if the offence is a serious offence—not an instrument of the offence;
the order is discharged.
(3) If the court decides not to confirm the *forfeiture order, the order is discharged.
86 Official Trustee must not deal with forfeited property before the court decides on confirmation of forfeiture order
During the period:
(a) starting on the day after the person’s conviction of the offence was *quashed; and
(b) ending when the court decides whether to confirm the *forfeiture order;
the *Official Trustee must not do any of the things required under section 70 in relation to property covered by the order or amounts received from disposing of such property.
Division 7—Miscellaneous
87 Giving notice if a forfeiture order is discharged on appeal or by quashing of a conviction
(1) This section applies in relation to particular property if:
(a) a *forfeiture order that covered that property is discharged by a court hearing an appeal against the making of the order; or
(b) a forfeiture order that covered that property is discharged under section 81 or subsection 85(3); or
(c) a forfeiture order that covered the property is discharged under subsection 85(2) in relation to that property.
(2) The *responsible authority must, as soon as practicable, give written notice of the discharge to any person the authority reasonably believes may have had an *interest in that property immediately before the order was made.
(3) The *responsible authority must, if required by a court, give or publish notice of the discharge to a specified person or class of persons. The court may also specify the time and manner in which the notice is to be given or published.
(4) A notice given under this section must include a statement to the effect that a person claiming to have had an *interest in that property may apply under section 88 for the transfer of the interest, or its value, to the person.
88 Returning property etc. following the discharge of a forfeiture order
(1) The *Official Trustee must arrange for:
(a) if property specified in a *forfeiture order is vested in the Commonwealth—an *interest in the property to be transferred to a person claiming to have had the interest in the property immediately before the order was made; or
(b) if property specified in a forfeiture order is no longer vested in the Commonwealth—an amount equal to the value of the interest in the property to be paid to the person;
if:
(c) the forfeiture order has been discharged in relation to the property:
(i) by a court hearing an appeal against the making of the order; or
(ii) under section 81 or 85; and
(d) the person applies to the Official Trustee, in writing, for the transfer of the interest to the person; and
(e) the person had that interest in the property immediately before the order was made.
(2) If the *Official Trustee must arrange for the property to be transferred, the Official Trustee may also, on behalf of the Commonwealth, do or authorise the doing of anything necessary or convenient to give effect to the transfer.
(3) Without limiting subsection (2), things that may be done or authorised under that subsection include:
(a) executing any instrument; and
(b) applying for registration of an *interest in the property on any appropriate register.
89 Person with interest in forfeited property may buy back the interest
(1) If a court:
(a) makes a *forfeiture order against property; and
(b) makes an order under section 57 in respect of an *interest in the property;
then:
(c) the payment to the Commonwealth, while the interest is still vested in the Commonwealth, of the amount specified in the order under section 57 as the value of the interest discharges the forfeiture order to the extent to which it relates to the interest; and
(d) the *Official Trustee:
(i) must arrange for the interest to be transferred to the person in whom it was vested immediately before the property was forfeited to the Commonwealth; and
(ii) may, on behalf of the Commonwealth, do or authorise the doing of anything necessary or convenient to effect the transfer.
(2) Without limiting subparagraph (1)(d)(ii), things that may be done or authorised under that subparagraph include:
(a) executing any instrument; and
(b) making an application for registration of an *interest in the property on any appropriate register.
90 Buying out other interests in forfeited property
(1) If:
(a) property is forfeited to the Commonwealth under this Part; and
(b) an interest in the property is required to be transferred to a person (the relevant person) under subsection 88(1) or 89(1), or under a direction under paragraph 73(2)(c); and
(c) the relevant person’s interest in the property, immediately before the forfeiture took place, was not the only interest in the property; and
(d) the relevant person gives written notice to each other person who had an interest in the property immediately before the forfeiture took place that:
(i) the relevant person intends to purchase that other interest from the Commonwealth; and
(ii) the person served with the notice may, within 21 days after receiving the notice, lodge a written objection to the purchase of that other interest with the Minister and the *Official Trustee; and
(e) no person served with notice under paragraph (d) in relation to that other interest lodges a written objection to the purchase of that other interest with the Minister and the Official Trustee within the period referred to in that paragraph; and
(f) the relevant person pays to the Commonwealth, while that other interest is still vested in the Commonwealth, an amount equal to the value of that other interest;
the Official Trustee must arrange for that other interest to be transferred to the relevant person.
(2) If a person served with notice under paragraph (1)(d) in relation to the other interest mentioned in that paragraph lodges a written objection to the purchase of that other interest with the Minister and the *Official Trustee within the period referred to in that paragraph:
(a) the Minister; or
(b) a *senior Departmental officer authorised by the Minister for the purposes of this subsection;
may direct the Official Trustee to transfer that other interest to the person.
Part 2‑3—Forfeiture on conviction of a serious offence
91 Simplified outline of this Part
If a person is convicted of a serious offence, property that is subject to a restraining order relating to the offence is forfeited to the Commonwealth unless the property is excluded from forfeiture.
There are cases in which compensation is payable by the Commonwealth.
There are cases in which forfeited property can be recovered from the Commonwealth.
Note: Property can be forfeited in relation to a serious offence, without a conviction, under a forfeiture order under Part 2‑2.
Division 1—Forfeiture on conviction of a serious offence
92 Forfeiting restrained property without a forfeiture order if a person has been convicted of a serious offence
(1) Property is forfeited to the Commonwealth at the end of the period applying under subsection (3) if:
(a) a person is convicted of a *serious offence; and
(b) either:
(i) at the end of that period, the property is covered by a *restraining order under section 17 or 18 against the person that relates to the offence; or
(ii) the property was covered by such a restraining order against the person, but the order was revoked under section 44 or the property was excluded from the order under that section; and
(c) the property is not subject to an order under section 94 excluding the property from forfeiture under this Part.
(2) It does not matter whether:
(a) the *restraining order was made before or after the person’s conviction of the *serious offence; or
(b) immediately before forfeiture, the property is the *person’s property or another person’s property.
(3) The period at the end of which the property is forfeited is:
(a) the 6 month period starting on the *conviction day; or
(b) if an *extension order is in force at the end of that period—the extended period relating to that extension order.
(4) This section does not apply if the person is taken to have been convicted of the offence because the person *absconded in connection with the offence.
(5) A *restraining order in relation to a *related offence with which the person has been charged, or is proposed to be charged, is taken, for the purposes of this section, to be a restraining order in relation to the offence of which the person was convicted.
(6) If:
(a) under section 44, a *restraining order that covered particular property is revoked, or particular property is excluded from a restraining order; and
(b) the security referred to in paragraph 44(1)(e), or the undertaking referred to in paragraph 44(2)(e), in connection with the revocation or exclusion is still in force;
the property is taken, for the purposes of this section, to be covered by the restraining order.
92A Notice of date of forfeiture under this Part, etc.
(1) The *responsible authority for the *restraining order referred to in paragraph 92(1)(b) must, before property is forfeited under this Part, take reasonable steps to give any person who has or claims, or whom the authority reasonably believes may have, an *interest in the property a written notice stating:
(a) the date on which the property will be forfeited under this Part unless it is excluded from forfeiture; and
(b) the effect of section 93 (which deals with *extension orders); and
(c) that the person may be able to apply for an order under one of the following sections in relation to the property:
(i) section 29 (which deals with the exclusion of property from *restraining orders);
(ii) section 94 (which deals with the exclusion of property from forfeiture);
(iii) section 94A (which deals with compensation).
(2) However, the *responsible authority need not give a notice to a person under subsection (1) if the person has made:
(a) an application for an *extension order in relation to the property; and
(b) an application under section 30, 31 or 94 in relation to the property.
93 Making an extension order extending the period before property is forfeited
(1) The court that made the *restraining order referred to in paragraph 92(1)(b) may make an order (an extension order) specifying an extended period for the purposes of subsection 92(3) if:
(a) an application for the order is made within 6 months after the start of the *conviction day for the relevant conviction; and
(b) the applicant has also applied to the court under:
(i) section 30 or 31 to exclude property from the restraining order; or
(ii) section 94 to exclude the property that is covered by the restraining order from forfeiture under this Part; and
(c) the court is satisfied that the applicant made the application under section 30, 31 or 94 without undue delay, and has since diligently followed up that application.
The extended period specified must end no later than 15 months from the start of the conviction day for the relevant conviction.
(2) The *extension order stops being in force if the application under section 30, 31 or 94 is finally determined before the end of the 6 month period starting on the *conviction day for the relevant conviction.
(3) The extended period ends if the application under section 30, 31 or 94 is finally determined before the end of that period.
(4) If the court makes the *extension order, the *responsible authority must take reasonable steps to give any person who has or claims, or whom the authority reasonably believes may have, an *interest in the property to which the order relates a written notice stating:
(a) the date on which the property will be forfeited under this Part, in accordance with the extension order, unless it is excluded from forfeiture; and
(b) the effect of subsections (2) and (3).
94 Excluding property from forfeiture under this Part
(1) The court that made a *restraining order referred to in paragraph 92(1)(b) must make an order excluding particular property from forfeiture under this Part if:
(a) a person (the applicant) has applied for an order under this section; and
(b) the court is satisfied that the applicant has an *interest in property covered by the restraining order; and
(d) a person has been convicted of a *serious offence to which the restraining order relates; and
(e) the court is satisfied that the applicant’s interest in the property is neither *proceeds of *unlawful activity nor an *instrument of unlawful activity; and
(f) the court is satisfied that the applicant’s interest in the property was lawfully acquired.
(2) To avoid doubt, an order under this section cannot be made in relation to property if the property has already been forfeited under this Part.
(3) The person must give written notice to the *responsible authority of both the application and the grounds on which the order is sought.
(4) The *responsible authority may appear and adduce evidence at the hearing of the application.
(5) The *responsible authority must give the applicant notice of any grounds on which it proposes to contest the application. However, the authority need not do so until it has had a reasonable opportunity to conduct *examinations in relation to the application.
(6) The application must not be heard until the *responsible authority has had a reasonable opportunity to conduct *examinations in relation to the application.
94A Compensating for proportion of property not derived or realised from commission of any offence
(1) The court that made a *restraining order referred to in paragraph 92(1)(b) must make an order that complies with subsection (2) if:
(a) a person (the applicant) has applied for an order under this section; and
(b) the court is satisfied that the applicant has an *interest in property covered, or that was at any time covered, by the restraining order; and
(c) a person has been convicted of a *serious offence to which the restraining order relates; and
(d) the court is satisfied that a proportion of the value of the applicant’s interest was not derived or realised, directly or indirectly, from the commission of any offence; and
(e) the court is satisfied that the applicant’s interest is not an *instrument of any offence.
(2) An order under this section must:
(a) specify the proportion found by the court under paragraph (1)(d); and
(b) direct the Commonwealth, once the property has vested absolutely in it, to:
(i) if the property has not been disposed of—dispose of the property; and
(ii) pay the applicant an amount equal to that proportion of the difference between the amount received from disposing of the property and the sum of any payments of the kind referred to in paragraph 100(1)(b) in connection with the forfeiture.
(3) A person who claims an *interest in property covered by a *restraining order referred to in paragraph 92(1)(b) may apply to the court that made the restraining order for an order under this section at any time.
(4) However, if the property has already been forfeited under this Part, the person cannot, unless the court gives leave, apply under subsection (3) if he or she:
(a) either:
(i) was given a notice under subsection 92A(1) in relation to the property; or
(ii) was not given such a notice because of subsection 92A(2); and
(b) did not make the application under subsection (3) before that forfeiture.
(5) The court may give the person leave to apply if the court is satisfied that:
(a) the person had a good reason for not making the application before the forfeiture; or
(b) the person now has evidence relevant to the application that was not available before the forfeiture; or
(c) there are special grounds for granting the leave.
(6) The person must give written notice to the *responsible authority of both the application and the grounds on which the order is sought.
(7) The *responsible authority may appear and adduce evidence at the hearing of the application.
(8) The *responsible authority must give the applicant notice of any grounds on which it proposes to contest the application. However, the authority need not do so until it has had a reasonable opportunity to conduct *examinations in relation to the application.
(9) The application must not be heard until the *responsible authority has had a reasonable opportunity to conduct *examinations in relation to the application.
95 Court may declare that property has been forfeited under this Part
The court that made the *restraining order referred to in paragraph 92(1)(b) may declare that particular property has been forfeited under this Part if:
(a) the *responsible authority applies to the court for the declaration; and
(b) the court is satisfied that that property is forfeited under this Part.
Division 2—Effect of forfeiture on conviction of a serious offence
96 When is property forfeited—general rule
Property forfeited under section 92 vests absolutely in the Commonwealth at the time of the forfeiture.
97 First exception—registrable property
(1) Despite section 96, if property forfeited under section 92 is *registrable property:
(a) that property vests in equity in the Commonwealth but does not vest in the Commonwealth at law until the applicable registration requirements have been complied with; and
(b) the *responsible authority for the *restraining order referred to in paragraph 92(1)(b) has power, on behalf of the Commonwealth, to do anything necessary or convenient to give notice of, or otherwise protect, the Commonwealth’s equitable interest in that property; and
(c) the Commonwealth is entitled to be registered as the owner of that property; and
(d) the *Official Trustee has power, on behalf of the Commonwealth, to do, or authorise the doing of, anything necessary or convenient to obtain the registration of the Commonwealth as the owner.
(2) Any action by the *responsible authority under paragraph (1)(b) is not a dealing for the purposes of subsection 99(1).
(3) The *Official Trustee’s powers under paragraph (1)(d) include executing any instrument required to be executed by a person transferring an *interest in property of that kind.
98 Second exception—if a joint owner dies
Despite section 96, if:
(a) a person who is convicted of a *serious offence was, immediately before his or her death, the joint owner of property; and
(b) the period that would apply under subsection 92(3) if the property were subject to forfeiture under section 92 in relation to the conviction had not ended before his or her death; and
(c) if that period had ended immediately before his or her death—the property would have been forfeited under section 92;
the property is taken to have vested in the Commonwealth immediately before his or her death.
98A Third exception—property located outside Australia
(1) Despite section 96, if property forfeited under section 92 is property located outside *Australia:
(a) that property vests in equity in the Commonwealth; and
(b) that property only vests in the Commonwealth at law to the extent permitted under the law in force in the place where that property is located; and
(c) the *responsible authority has power, on behalf of the Commonwealth, to do anything necessary or convenient to:
(i) give notice of, or otherwise protect, the Commonwealth’s equitable interest in that property; or
(ii) arrange for the enforcement of, or give effect to, the declaration under section 95 that relates to the forfeiture of that property.
Note: The following is an example of action by the responsible authority under subparagraph (1)(c)(ii): arranging for a request under section 32 of the *Mutual Assistance Act in relation to the enforcement of the declaration under section 95 of this Act that relates to the forfeiture of that property.
(2) Any action by the *responsible authority under subparagraph (1)(c)(i) is not a dealing for the purposes of subsection 99(1).
(3) Despite section 96 and subsection (1) of this section, if:
(a) property forfeited under section 92 is property located outside *Australia; and
(b) under the law in force in the place where that property is located, that property vests in a person;
that property vests in that person under that law.
(4) Subsection (3) does not affect any equitable interest vested in the Commonwealth by paragraph (1)(a).
99 When can the Commonwealth begin dealing with forfeited property?
(1) The Commonwealth, and persons acting on its behalf, can dispose of, or otherwise deal with, property forfeited under section 92 in relation to a person’s conviction of a *serious offence if and only if:
(a) the period applying under subsection (3) has come to an end; and
(b) the conviction has not been *quashed by that time.
(2) However, such disposals and dealings may occur earlier with the leave of the court and in accordance with any directions of the court.
(3) The period at the end of which the Commonwealth, and persons acting on its behalf, can dispose of or otherwise deal with the property is:
(a) if the conviction is one in relation to which neither paragraph 331(1)(b) nor (c) applies, the period ending:
(i) if the period provided for lodging an appeal against the conviction has ended without such an appeal having been lodged—at the end of that period; or
(ii) if an appeal against the conviction has been lodged—when the appeal lapses or is finally determined; or
(b) if the person is taken to have been convicted because of paragraph 331(1)(b), the period ending:
(i) if the period provided for lodging an appeal against the finding of the person guilty of the offence has ended without such an appeal having been lodged—at the end of that period; or
(ii) if an appeal against the finding of the person guilty of the offence has been lodged—when the appeal lapses or is finally determined; or
(c) if the person is taken to have been convicted because of paragraph 331(1)(c), the period ending:
(i) if the period provided for lodging an appeal against the person’s conviction of the other offence referred to in that paragraph has ended without such an appeal having been lodged—at the end of that period; or
(ii) if an appeal against the person’s conviction of the other offence referred to in that paragraph has been lodged—when the appeal lapses or is finally determined.
Controlled property
(4) If property forfeited under section 92 is controlled property for the purposes of Division 3 of Part 4‑1, this section does not prevent or limit the exercise of powers or performance of duties by the *Official Trustee under that Division.
100 How must forfeited property be dealt with?
(1) If subsection 99(1) authorises disposal of or dealing with particular property forfeited under section 92, the *Official Trustee must, on the Commonwealth’s behalf and as soon as practicable:
(a) dispose of any of the forfeited property that is not money; and
(b) apply:
(i) any amounts received from that disposal; and
(ii) any of the forfeited property that is money;
to payment of its remuneration and other costs, charges and expenses of the kind referred to in subsection 288(1) payable to or incurred by it in connection with the disposal and with the *restraining order that covered the property; and
(ba) apply:
(i) any amounts received from that disposal; and
(ii) any of the forfeited property that is money;
to payment of an *associated GST entity’s liability (if any) to pay *GST in connection with the disposal; and
(c) credit the remainder of the money and amounts received to the *Confiscated Assets Account as required by section 296.
(2) However, if the *Official Trustee has not yet begun to deal with property forfeited under section 92, as required by this section:
(a) the Minister; or
(b) a *senior Departmental officer authorised by the Minister for the purposes of this subsection;
may direct that the property be disposed of, or otherwise dealt with, as specified in the direction.
(3) Such a direction could be that property is to be disposed of in accordance with the provisions of a specified law.
Note: The quashing of a conviction of an offence relating to the forfeiture will prevent things being done under this section: see section 112.
101 Minister may give supporting directions
(1) The Minister may give all directions that are necessary or convenient to realise the Commonwealth’s *interest in property forfeited under section 92.
(2) This includes, for *registrable property forfeited under section 92, directing an officer of the Department or a *police officer to do anything necessary and reasonable to obtain possession of any document necessary for the transfer of the property.
Division 2A—Controlled property
101A Official Trustee may take custody and control of forfeited property
(1) The *Official Trustee may take custody and control of property forfeited to the Commonwealth under section 92.
Note: Part 4‑1 sets out the Official Trustee’s powers over the property.
(2) If the *Official Trustee decides to take custody and control of property under subsection (1), the court that made the *restraining order referred to in paragraph 92(1)(b) in relation to the property may make either or both of the following orders:
(a) an order determining any question relating to the exercise of powers conferred on the Official Trustee under Division 3 of Part 4‑1, or the performance of duties imposed on the Official Trustee under that Division, to the extent that those powers or duties relate to the property;
(b) an order directing any person to do anything necessary or convenient to enable the Official Trustee to take custody and control of the property.
(3) The court may only make an order under subsection (2) on the application of:
(a) the *responsible authority; or
(b) the person who, immediately before the property was forfeited under section 92, was the owner of the property covered by that order; or
(c) the *Official Trustee; or
(d) any other person who has the leave of the court.
Division 3—Recovery of forfeited property
102 Court may make orders relating to transfer of forfeited property etc.
If property is forfeited to the Commonwealth under section 92, the court that made the *restraining order referred to in paragraph 92(1)(b) must, if:
(a) a person who claims an *interest in the property applies under section 104 for an order under this section; and
(b) the court is satisfied that:
(i) the applicant had an interest in the property before the forfeiture of the property; and
(ii) the applicant’s interest in the property is neither *proceeds of unlawful activity nor an *instrument of unlawful activity; and
(iii) the applicant’s interest in the property was lawfully acquired;
make an order:
(c) declaring the nature, extent and value of the applicant’s interest in the property; and
(d) either:
(i) if the interest is still vested in the Commonwealth—directing the Commonwealth to transfer the interest to the applicant; or
(ii) directing the Commonwealth to pay to the applicant an amount equal to the value declared under paragraph (c).
103 Court may make orders relating to buying back forfeited property
(1) If property is forfeited to the Commonwealth under section 92, the court that made the *restraining order referred to in paragraph 92(1)(b) may, if:
(a) a person who claims to have had an *interest in the property before the forfeiture has made an application under section 104A for an order under this section; and
(b) the court is satisfied that the person had the interest immediately before the forfeiture; and
(c) the court is satisfied that the person is not a *suspect in relation to the restraining order; and
(d) the court is satisfied that, at the time when the offence mentioned in paragraph 92(1)(a) was committed, the person did not have knowledge of the conduct constituting the offence; and
(e) in a case where the property was *proceeds of an offence or an *instrument of an offence—the court is satisfied that, when the property became proceeds of an offence or an instrument of an offence, the person had no knowledge of the conduct constituting the offence; and
(f) the court is satisfied that, if the interest were to be transferred to the person under section 105:
(i) the amount paid to the Commonwealth under paragraph 105(1)(c) would not be property that is covered by subsection (6); and
(ii) if the whole or a part of the amount paid to the Commonwealth under paragraph 105(1)(c) would be borrowed by the person under a loan—the person’s financial circumstances are such that the person will be able to repay the loan, meet the person’s eligible living expenses and meet any eligible debts of the person, using property that is not covered by subsection (6); and
(g) the court is satisfied that:
(i) it would not be contrary to the public interest for the interest to be transferred to the person; and
(ii) there is no other reason why the interest should not be transferred to the person;
make an order:
(h) declaring the nature, extent and value (as at the time when the order is made under this subsection) of the interest; and
(i) declaring that the forfeiture ceases to operate in relation to the interest if payment is made under section 105.
Note: Money can be property.
(2) For the purposes of this section, it is immaterial whether the loan mentioned in subparagraph (1)(f)(ii) was made under an arrangement entered into before or after the application mentioned in paragraph (1)(a) was made.
(3) For the purposes of this section, loan includes anything that may reasonably be regarded as equivalent to a loan, and borrow has a corresponding meaning.
(4) For the purposes of this section, each of the following are eligible living expenses of the person:
(a) the person’s reasonable living expenses;
(b) the reasonable living expenses of any of the *dependants of the person;
(c) the reasonable business expenses of the person.
(5) For the purposes of this section, an eligible debt of the person is a debt incurred in good faith by the person.
(6) This subsection covers any of the following property:
(a) property that is wholly or partly derived or realised by the person, directly or indirectly, from *unlawful activity;
(b) property that is used in, or in connection with, the commission of unlawful activity;
(c) property that is intended to be used in, or in connection with, the commission of unlawful activity.
104 Applying for an order under section 102
(1) A person who claims an *interest in property that has been forfeited to the Commonwealth under section 92 may, at any time after the forfeiture, apply to the court that made the *restraining order referred to in paragraph 92(1)(b) for an order under section 102.
(2) However, unless the court gives leave, the person cannot make an application for an order under section 102 if he or she:
(a) either:
(i) was given a notice under subsection 92A(1) in relation to the property; or
(ii) was not given such a notice because of subsection 92A(2); and
(b) either:
(i) did not make an application under section 29 or 94 in relation to the property; or
(ii) made such an application and appeared at the hearing of the application.
(3) The court may give the person leave to apply if the court is satisfied that:
(a) if subparagraph (2)(b)(i) applies—the person had a good reason for not making an application under section 29 or 94; or
(b) if subparagraph (2)(b)(ii) applies—the person now has evidence relevant to the person’s application under this section that was not available at the time of the hearing; or
(c) in either case—there are other special grounds for granting the leave.
(4) The applicant must give written notice to the *responsible authority of both the application and the grounds on which the order is sought.
(5) The *responsible authority may appear and adduce evidence at the hearing of the application.
(6) The *responsible authority must give the applicant notice of any grounds on which it proposes to contest the application. However, the authority need not do so until it has had a reasonable opportunity to conduct *examinations in relation to the application.
(7) The application must not be heard until the *responsible authority has had a reasonable opportunity to conduct *examinations in relation to the application.
104A Applying for an order under section 103
(1) A person who claims an *interest in property covered by a *restraining order referred to in paragraph 92(1)(b) may apply to the court that made the restraining order for an order under section 103 at any time.
(2) However, if the property has already been forfeited under section 92, the person cannot, unless the court gives leave, apply under subsection (1) of this section if the person:
(a) either:
(i) was given a notice under subsection 92A(1) in relation to the property; or
(ii) was not given such a notice because of subsection 92A(2); and
(b) did not make the application under subsection (1) of this section before that forfeiture.
(3) The court may give the person leave to apply if the court is satisfied that:
(a) the person had a good reason for not making the application before that forfeiture; or
(b) the person now has evidence relevant to the application that was not available before that forfeiture; or
(c) there are special grounds for granting the leave.
(4) However, the court must not hear an application under subsection (1) if:
(a) the *Official Trustee has taken any action in relation to the property under section 100; and
(b) it would not be practicable for the court to make an order in relation to the interest under section 103.
(5) The person must give written notice to the *responsible authority of both the application and the grounds on which the order is sought.
(6) The *responsible authority may appear and adduce evidence at the hearing of the application.
(7) To avoid doubt, the *responsible authority may represent the Commonwealth in proceedings relating to an application under subsection (1).
(8) The *responsible authority must give the applicant notice of any grounds on which it proposes to contest the application. However, the authority need not do so until it has had a reasonable opportunity to conduct *examinations in relation to the application.
(9) The application must not be heard until the *responsible authority has had a reasonable opportunity to conduct *examinations in relation to the application.
105 Person with interest in forfeited property may buy back the interest
(1) If:
(a) property is forfeited to the Commonwealth under section 92; and
(b) a court makes an order under section 103 in respect of an *interest in the property; and
(c) the amount specified in the order as the value of the interest is paid to the Commonwealth, while the interest is still vested in the Commonwealth;
section 92 ceases to apply in relation to the interest, and the *Official Trustee:
(d) must arrange for the interest to be transferred to the person in whom it was vested immediately before the property was forfeited to the Commonwealth; and
(e) may, on behalf of the Commonwealth, do or authorise the doing of anything necessary or convenient to effect the transfer.
(2) Without limiting paragraph (1)(e), things that may be done or authorised under that paragraph include:
(a) executing any instrument; and
(b) applying for registration of an *interest in the property on any appropriate register.
106 Buying out other interests in forfeited property
(1) If:
(a) property is forfeited to the Commonwealth under section 92; and
(b) an interest in the property is required to be transferred to a person (the relevant person) under section 105, or under a direction under subparagraph 102(d)(i); and
(c) the relevant person’s interest in the property, immediately before the forfeiture took place, was not the only interest in the property; and
(d) the relevant person gives written notice to each other person who had an interest in the property immediately before the forfeiture took place that:
(i) the relevant person intends to purchase that other interest from the Commonwealth; and
(ii) the person served with the notice may, within 21 days after receiving the notice, lodge a written objection to the purchase of that other interest with the Minister and the *Official Trustee; and
(e) no person served with the notice under paragraph (d) in relation to that other interest lodges a written objection to the purchase of that other interest with the Minister and the Official Trustee within the period referred to in that paragraph; and
(f) the relevant person pays to the Commonwealth, while that other interest is still vested in the Commonwealth, an amount equal to the value of that other interest;
the Official Trustee must arrange for that other interest to be transferred to the relevant person.
(2) If a person served with notice under paragraph (1)(d) in relation to the other interest mentioned in that paragraph lodges a written objection to the purchase of that other interest with the Minister and the *Official Trustee within the period referred to in that paragraph:
(a) the Minister; or
(b) a *senior Departmental officer authorised by the Minister for the purposes of this subsection;
may direct the Official Trustee to transfer that other interest to the person.
Division 4—The effect on forfeiture of convictions being quashed
107 The effect on forfeiture of convictions being quashed
(1) A forfeiture of property to the Commonwealth under section 92 in relation to a person’s conviction of an offence ceases to have effect if:
(a) the person’s conviction of the offence is subsequently *quashed; and
(b) the forfeiture does not also relate to the person’s conviction of other offences that have not been quashed; and
(c) the *responsible authority does not, within 14 days after the conviction is quashed, apply to the court that made the *restraining order referred to in paragraph 92(1)(b) for the forfeiture to be confirmed.
(2) However, unless and until a court decides otherwise on such an application, the *quashing of the conviction does not affect the forfeiture:
(a) for 14 days after the conviction is quashed; and
(b) if the *responsible authority makes such an application.
108 Notice of application for confirmation of forfeiture
(1) The *responsible authority must give written notice of an application for confirmation of the forfeiture to:
(a) the person whose conviction was *quashed; and
(b) any person who claims, or prior to the forfeiture claimed, an *interest in property covered by the forfeiture; and
(c) any person whom the authority reasonably believes may have had an interest in that property before the forfeiture.
Note: If the authority applies for confirmation of a forfeiture, it can also apply for an examination order under Part 3‑1.
(2) The court hearing the application may, at any time before finally determining the application, direct the *responsible authority to give or publish notice of the application to a specified person or class of persons. The court may also specify the time and manner in which the notice is to be given or published.
109 Procedure on application for confirmation of forfeiture
(1) Any person who claims an *interest in property covered by the forfeiture may appear and adduce evidence at the hearing of the application for confirmation of the forfeiture.
(2) The court may, in determining the application, have regard to:
(a) the transcript of any proceeding against the person for:
(i) the offence of which the person was convicted; or
(ii) if the person was taken to be convicted of that offence because of paragraph 331(1)(c)—the other offence referred to in that paragraph;
including any appeals relating to the conviction; and
(b) the evidence given in any such proceeding.
110 Court may confirm forfeiture
(1) The court may confirm the forfeiture if the court is satisfied that:
(a) it could make a *forfeiture order under section 47 in relation to the offence in relation to which the person’s conviction was *quashed if the *responsible authority for the *restraining order referred to in paragraph 92(1)(b) were to apply for an order under that section; or
(b) it could make a forfeiture order under section 49 in relation to the offence in relation to which the person’s conviction was quashed if the authority were to apply for an order under that section.
(2) For the purposes of paragraphs (1)(a) and (b), the requirement in paragraph 47(1)(b) or 49(1)(b) (as the case requires) is taken to be satisfied.
111 Effect of court’s decision on confirmation of forfeiture
(1) If the court confirms the forfeiture under paragraph 110(1)(a), the forfeiture is taken not to be affected by the *quashing of the person’s conviction of the offence.
(2) If the court confirms the forfeiture under paragraph 110(1)(b):
(a) to the extent that the property covered by the forfeiture is:
(i) in any case—*proceeds of the offence; or
(ii) if the offence is a *serious offence—an *instrument of the offence;
the forfeiture is taken not to be affected by the *quashing of the person’s conviction of the offence; but
(b) to the extent that the property covered by the forfeiture is:
(i) in any case—not proceeds of the offence; and
(ii) if the offence is a serious offence—not an instrument of the offence;
the forfeiture ceases to have effect.
(3) If the court decides not to confirm the forfeiture, the forfeiture ceases to have effect.
112 Official Trustee must not deal with forfeited property before the court decides on confirmation of forfeiture
During the period:
(a) starting on the day after the person’s conviction of the offence was *quashed; and
(b) ending when the court decides whether to confirm the forfeiture;
the *Official Trustee must not do any of the things required under section 100 in relation to property covered by the forfeiture or amounts received from disposing of such property.
113 Giving notice if forfeiture ceases to have effect on quashing of a conviction
(1) This section applies in relation to particular property if:
(a) the property was forfeited to the Commonwealth under section 92 but the forfeiture ceases to have effect under section 107 or subsection 111(3); or
(b) the property was forfeited to the Commonwealth under section 92 but the forfeiture ceases to have effect in relation to that property under subsection 111(2).
(2) The *responsible authority for the *restraining order referred to in paragraph 92(1)(b) must, as soon as practicable after the forfeiture ceases to have effect, give written notice of the cessation to any person the authority reasonably believes may have had an *interest in that property immediately before the forfeiture.
(3) The *responsible authority must, if required by a court, give or publish notice of the cessation to a specified person or class of persons. The court may also specify the time and manner in which the notice is to be given or published.
(4) A notice given under this section must include a statement to the effect that a person claiming to have had an *interest in that property may apply under section 114 for the transfer of the interest, or its value, to the person.
114 Returning property etc. following forfeiture ceasing to have effect
(1) The *Official Trustee must arrange for:
(a) if property forfeited to the Commonwealth under section 92 is vested in the Commonwealth—an *interest in the property to be transferred to a person claiming to have had the interest in the property immediately before the forfeiture; or
(b) if property forfeited to the Commonwealth under section 92 is no longer vested in the Commonwealth—an amount equal to the value of the interest in the property to be paid to the person;
if:
(c) the forfeiture has ceased to have effect under section 107 or 111; and
(d) the person applies to the Official Trustee, in writing, for the transfer of the interest to the person; and
(e) the person had that interest in the property at that time.
(2) If the *Official Trustee must arrange for the property to be transferred, the Official Trustee may also, on behalf of the Commonwealth, do or authorise the doing of anything necessary or convenient to give effect to the transfer.
(3) Without limiting subsection (2), things that may be done or authorised under that subsection include:
(a) executing any instrument; and
(b) applying for registration of an *interest in the property on any appropriate register.
Part 2‑4—Pecuniary penalty orders
115 Simplified outline of this Part
If certain offences have been committed, pecuniary penalty orders can be made, ordering payments to the Commonwealth of amounts based on:
(a) the benefits that a person has derived from such an offence; and
(b) (in some cases) the benefits that the person has derived from other unlawful activity.
(It is not always a requirement that a person has been convicted of the offence.)
Division 1—Making pecuniary penalty orders
116 Making pecuniary penalty orders
(1) A court with *proceeds jurisdiction must make an order requiring a person to pay an amount to the Commonwealth if:
(a) a *proceeds of crime authority applies for the order; and
(b) the court is satisfied of either or both of the following:
(i) the person has been convicted of an *indictable offence, and has derived *benefits from the commission of the offence;
(ii) the person has committed a *serious offence.
Note: The conviction for, or reasonable grounds for suspecting commission of, an indictable offence could be used as grounds for a restraining order under Part 2‑1 covering all or some of the person’s property.
(3) In determining whether a person has derived a *benefit, the court may treat as property of the person any property that, in the court’s opinion, is subject to the person’s *effective control.
(4) The court’s power to make a *pecuniary penalty order in relation to an offence is not affected by the existence of another *confiscation order in relation to that offence.
Note: There are restrictions on applications pecuniary penalty orders if previous applications for pecuniary penalty orders have already been made: see section 135.
117 Pecuniary penalty orders made in relation to serious offence convictions
(1) A court must not make a *pecuniary penalty order in relation to a person’s conviction of a *serious offence until after the end of the period of 6 months commencing on the *conviction day.
(2) However, if the court before which the person was convicted has *proceeds jurisdiction, the court may make a *pecuniary penalty order in relation to the person’s conviction when it passes sentence on the person.
Note: Pecuniary penalty orders made under this subsection cannot be enforced within 6 months: see subsection 140(3).
(3) Subsection (1) does not apply if the person is taken to have been convicted of the *serious offence because of paragraph 331(1)(d).
118 Making of pecuniary penalty order if person has absconded
If, because of paragraph 331(1)(d), a person is taken to have been convicted of an *indictable offence, a court must not make a *pecuniary penalty order in relation to the person’s conviction unless:
(a) the court is satisfied, on the balance of probabilities, that the person has *absconded; and
(b) either:
(i) the person has been committed for trial for the offence; or
(ii) the court is satisfied, having regard to all the evidence before the court, that a reasonable jury, properly instructed, could lawfully find the person guilty of the offence.
119 Ancillary orders
The court that made a *pecuniary penalty order, or any other court that could have made the pecuniary penalty order, may make orders ancillary to the pecuniary penalty order, either when it makes the pecuniary penalty order or at a later time.
120 Acquittals do not affect pecuniary penalty orders
The fact that a person has been acquitted of an offence with which the person has been charged does not affect the court’s power to make a *pecuniary penalty order in relation to the offence.
Division 2—Penalty amounts
Subdivision A—General
121 Determining penalty amounts
(1) The amount that a person is ordered to pay to the Commonwealth under a *pecuniary penalty order (the penalty amount) is the amount the court determines under this Division.
(2) If the offence to which the order relates is not a *serious offence, the *penalty amount is determined by:
(a) assessing under Subdivision B the value of the *benefits the person derived from the commission of the offence; and
(b) subtracting from that value the sum of all the reductions (if any) in the penalty amount under Subdivision C.
(3) If the offence to which the order relates is a *serious offence, the *penalty amount is determined by:
(a) assessing under Subdivision B the value of the *benefits the person derived from:
(i) the commission of that offence; and
(ii) subject to subsection (4), the commission of any other offence that constitutes *unlawful activity; and
(b) subtracting from that value the sum of all the reductions (if any) in the penalty amount under Subdivision C.
Note: Pecuniary penalty orders can be varied under Subdivision D to increase penalty amounts in some cases.
(4) Subparagraph (3)(a)(ii) does not apply in relation to an offence that is not a *terrorism offence unless the offence was committed:
(a) within:
(i) if some or all of the person’s property, or property suspected of being subject to the *effective control of the person, is covered by a *restraining order—the period of 6 years preceding the application for the restraining order; or
(ii) otherwise—the period of 6 years preceding the application for the *pecuniary penalty order; or
(b) during the period since that application for the restraining order or the pecuniary penalty order was made
Subdivision B—The value of benefits derived from the commission of an offence
122 Evidence the court is to consider
(1) In assessing the value of *benefits that a person has derived from the commission of an offence or offences (the illegal activity), the court is to have regard to the evidence before it concerning all or any of the following:
(a) the money, or the value of the property other than money, that, because of the illegal activity, came into the possession or under the control of the person or another person;
(b) the value of any other benefit that, because of the illegal activity, was provided to the person or another person;
(c) if any of the illegal activity consisted of doing an act or thing in relation to a *narcotic substance:
(i) the market value, at the time of the offence, of similar or substantially similar narcotic substances; and
(ii) the amount that was, or the range of amounts that were, ordinarily paid for the doing of a similar or substantially similar act or thing;
(d) the value of the *person’s property before, during and after the illegal activity;
(e) the person’s income and expenditure before, during and after the illegal activity.
(2) At the hearing of an application for a *pecuniary penalty order, a *police officer, or a *Customs officer, who is experienced in the investigation of narcotics offences may testify, to the best of the officer’s information, knowledge and belief:
(a) with respect to the amount that was the market value of a *narcotic substance at a particular time or during a particular period; or
(b) with respect to the amount, or the range of amounts, ordinarily paid at a particular time, or during a particular period, for the doing of an act or thing in relation to a narcotic substance.
(3) The officer’s testimony under subsection (2):
(a) is admissible at the hearing despite any rule of law or practice relating to hearsay evidence; and
(b) is prima facie evidence of the matters testified.
123 Value of benefits derived—non‑serious offences
(1) If:
(a) an application is made for a *pecuniary penalty order against a person in relation to an offence or offences (the illegal activity); and
(b) the offence is not a *serious offence, or none of the offences are serious offences; and
(c) at the hearing of the application, evidence is given that the value of the *person’s property during or after the illegal activity exceeded the value of the person’s property before the illegal activity;
the court is to treat the value of the *benefits derived by the person from the commission of the illegal activity as being not less than the amount of the greatest excess.
(2) The amount treated as the value of the *benefits under this section is reduced to the extent (if any) that the court is satisfied that the excess was due to causes unrelated to the illegal activity.
124 Value of benefits derived—serious offences
(1) If:
(a) an application is made for a *pecuniary penalty order against a person in relation to an offence or offences (the illegal activity); and
(b) the offence is a *serious offence, or one or more of the offences are serious offences; and
(c) at the hearing of the application, evidence is given that the value of the *person’s property during or after:
(i) the illegal activity; or
(ii) any other *unlawful activity that the person has engaged in that constitutes a *terrorism offence; or
(iii) any other unlawful activity that the person has engaged in, within the period referred to in subsection (5), that does not constitute a terrorism offence;
exceeded the value of the person’s property before the illegal activity and the other unlawful activity;
the court is to treat the value of the *benefits derived by the person from the commission of the illegal activity as being not less than the amount of the greatest excess.
(2) The amount treated as the value of the *benefits under subsection (1) is reduced to the extent (if any) that the court is satisfied that the excess was due to causes unrelated to:
(a) the illegal activity; or
(b) any other *unlawful activity that the person has engaged in that constitutes a *terrorism offence; or
(c) any other unlawful activity that the person has engaged in, within the period referred to in subsection (5), that does not constitute a terrorism offence;
(3) If evidence is given, at the hearing of the application, of the person’s expenditure during the period referred to in subsection (5), the amount of the expenditure is presumed, unless the contrary is proved, to be the value of a *benefit that, because of the illegal activity, was provided to the person.
(4) Subsection (3) does not apply to expenditure to the extent that it resulted in acquisition of property that is taken into account under subsection (1).
(5) The period for the purposes of subparagraph (1)(c)(iii), paragraph (2)(c) and subsection (3) is:
(a) if some or all of the person’s property, or property that is suspected of being subject to the *effective control of the person, is covered by a *restraining order—the period of 6 years preceding the application for the restraining order;
(b) otherwise—the period of 6 years preceding the application for the *pecuniary penalty order;
and includes the period since that application for the restraining order or the pecuniary penalty order was made.
125 Value of benefits may be as at time of assessment
(1) In quantifying the value of a *benefit for the purposes of this Subdivision, the court may treat as the value of the benefit the value that the benefit would have had if derived at the time the court makes its assessment of the value of benefits.
(2) Without limiting subsection (1), the court may have regard to any decline in the purchasing power of money between the time when the *benefit was derived and the time the court makes its assessment.
126 Matters that do not reduce the value of benefits
In assessing the value of *benefits that a person has derived from the commission of an offence or offences (the illegal activity), none of the following are to be subtracted:
(a) expenses or outgoings the person incurred in relation to the illegal activity;
(b) the value of any benefits that the person derives as *agent for, or otherwise on behalf of, another person (whether or not the other person receives any of the benefits).
127 Benefits already the subject of pecuniary penalty
(1) A *benefit is not to be taken into account for the purposes of this Subdivision if a pecuniary penalty has been imposed in respect of the benefit under:
(a) this Act; or
(b) Division 3 of Part XIII of the Customs Act 1901; or
(c) a law of a Territory; or
(d) a law of a State.
(2) To avoid doubt, an amount payable under a *literary proceeds order is a pecuniary penalty for the purposes of this section.
128 Property under a person’s effective control
In assessing the value of *benefits that a person has derived, the court may treat as property of the person any property that, in the court’s opinion, is subject to the person’s *effective control.
129 Effect of property vesting in an insolvency trustee
In assessing the value of *benefits that a person has derived, the *person’s property is taken to continue to be the person’s property if it vests in any of the following:
(a) in relation to a bankruptcy—the trustee of the estate of the bankrupt; or
(b) in relation to a composition or scheme of arrangement under Division 6 of Part IV of the Bankruptcy Act 1966—the trustee of the composition or scheme of arrangement; or
(c) in relation to a personal insolvency agreement under Part X of the Bankruptcy Act 1966—the trustee of the agreement; or
(d) in relation to the estate of a deceased person in respect of which an order has been made under Part XI of the Bankruptcy Act 1966—the trustee of the estate.
Subdivision C—Reducing penalty amounts
130 Reducing penalty amounts to take account of forfeiture and proposed forfeiture
The *penalty amount under a *pecuniary penalty order against a person is reduced by an amount equal to the value, as at the time of the making of the order, of any property that is *proceeds of the *unlawful activity to which the order relates if:
(a) the property has been forfeited, under this Act or another law of the Commonwealth or under a law of a *non‑governing Territory, in relation to the unlawful activity to which the order relates; or
(b) an application has been made for a *forfeiture order that would cover the property.
131 Reducing penalty amounts to take account of tax paid
Tax paid before application for order is made
(1) The court must reduce the *penalty amount under a *pecuniary penalty order against a person by an amount that, in the court’s opinion, represents the extent to which tax that the person has paid before the application for the order is made is attributable to the *benefits to which the order relates.
Tax paid after application for order is made
(1A) The court may, if it considers that it is in the interests of justice to do so, reduce the *penalty amount under a *pecuniary penalty order against a person by an amount that, in the court’s opinion, represents the extent to which tax that the person has paid at or after the time the application for the order is made is attributable to the *benefits to which the order relates.
Tax covered by this section
(2) Tax covered by this section may be tax payable under a law of the Commonwealth, a State, a Territory or a foreign country.
132 Reducing penalty amounts to take account of fines etc.
The court may, if it considers it appropriate to do so, reduce the *penalty amount under a *pecuniary penalty order against a person by an amount equal to the amount payable by the person by way of fine, restitution, compensation or damages in relation to an offence to which the order relates.
Subdivision D—Varying pecuniary penalty orders to increase penalty amounts
133 Varying pecuniary penalty orders to increase penalty amounts
(1) The court may, on the application of the *responsible authority, vary a *pecuniary penalty order against a person by increasing the *penalty amount if one or more of subsections (2), (2A) or (3) apply. The amount of each increase is as specified in the relevant subsection.
(2) The *penalty amount may be increased if:
(a) the penalty amount was reduced under section 130 to take account of a forfeiture of property or a proposed *forfeiture order against property; and
(b) an appeal against the forfeiture or forfeiture order is allowed, or the proceedings for the proposed forfeiture order terminate without the proposed forfeiture order being made.
The amount of the increase is equal to the value of the property.
(2A) The *penalty amount may be increased if:
(a) the penalty amount was reduced under section 130 to take account of a forfeiture of property or a proposed *forfeiture order against property; and
(b) one of the following orders has been made:
(i) an order under section 73 or 94 excluding an *interest in the property from forfeiture;
(ii) an order under section 77 or 94A (which deal with compensation) directing the Commonwealth to pay an amount to a person in relation to a proportion of an interest in the property that was not derived or realised from the commission of any offence;
(iii) an order under section 102 (which deals with the recovery of property) in relation to an interest in the property.
The amount of the increase is such amount as the court considers appropriate.
(2B) In determining the amount of the increase for the purposes of subsection (2A), the court may have regard to:
(a) if subparagraph (2A)(b)(i) or (iii) applies—the value of the interest, as at the time the order was made; and
(b) if subparagraph (2A)(b)(ii) applies—the amount that the Commonwealth was required to pay; and
(c) any other matter the court considers relevant.
(3) The *penalty amount may be increased if:
(a) the penalty amount was reduced under section 131 to take account of an amount of tax the person paid; and
(b) an amount is repaid or refunded to the person in respect of that tax.
The amount of the increase is equal to the amount repaid or refunded.
(4) The *responsible authority’s application may deal with more than one increase to the same *penalty amount.
Division 3—How pecuniary penalty orders are obtained
134 Proceeds of crime authority may apply for a pecuniary penalty order
(1) A *proceeds of crime authority may apply for a *pecuniary penalty order.
(2) If the application relates to a person’s conviction of a *serious offence, the application must be made before:
(a) the end of the period of 9 months after the *conviction day; or
(b) if an *extension order is in force at the end of that period—the end of the period of 3 months after the end of the extended period relating to that extension order.
(3) If the application relates to a person’s conviction of an *indictable offence that is not a *serious offence, the application must be made before the end of the period of 6 months after the *conviction day.
(4) An application may be made in relation to one or more offences.
(5) An application may be made for a *pecuniary penalty order in relation to an offence even if:
(a) a *forfeiture order in relation to the offence, or an application for such a forfeiture order, has been made; or
(b) Part 2‑3 (forfeiture on conviction of a serious offence) applies to the offence.
(6) Despite subsections (2) and (3), the court hearing the application may give leave for the application to be made after the time before which an application would otherwise need to be made under those subsections if it is satisfied that it would be in the interests of justice to allow the application.
135 Additional application for a pecuniary penalty order
(1) A *proceeds of crime authority cannot, unless the court gives leave, apply for a *pecuniary penalty order against a person in respect of *benefits the person derived from the commission of an offence if:
(a) an application has previously been made:
(i) under this Division; or
(ii) under another law of the Commonwealth; or
(iii) under a law of a *non‑governing Territory;
for a pecuniary penalty in respect of those benefits the person derived from the commission of the offence; and
(b) the application has been finally determined on the merits.
(2) The court must not give leave unless it is satisfied that:
(a)