2002

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Attorney-General)

2002

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Attorney-General)

An Act to deprive people of the proceeds of crime and of property used for criminal activity, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

This Act is the Confiscation of Criminal Assets Act 2002.

This Act commences on a day fixed by the Minister by written notice.

Note 1 The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

Note 2 A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act, s 77 (1)).

Note 3 If a provision has not commenced within 6 months beginning on the notification day, it automatically commences on the first day after that period (see Legislation Act, s 79).

The purposes of this Act include the following:

(a) to encourage law-abiding behaviour by the community;

(b) to give effect to the principle of public policy that a person should not be enriched because of the commission of an offence, whether or not anyone has been convicted of the offence;

(c) to deprive a person of all material advantage derived from the commission of an offence, whatever the form into which property or benefits derived from the offence may have been changed;

(d) to deprive a person of property used, or intended by an offender to be used, in relation to the commission of an offence, whatever the form into which it may have been changed, and to prevent the person from using the property to commit other offences;

(e) to enable the effective tracing and seizure by law enforcement authorities of property used, or intended by an offender to be used, in relation to the commission of an offence and all material advantage derived from the offence;

(f) to provide for the enforcement in the ACT of orders, notices or decisions (however described) made under corresponding laws.

(1) This Act applies to property located anywhere, whether in the ACT, in Australia outside the ACT, or outside Australia.

(2) This Act applies to dealings with property anywhere, whether it happens in the ACT, in Australia outside the ACT, or outside Australia.

This Act applies in relation to offences, whether committed, or alleged to have been committed, before or after the commencement of this Act.

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain words and expressions used in this Act, and includes references (signpost definitions) to other words and expressions defined elsewhere in this Act.

For example, the signpost definition ‘effective control, of property—see section 14.’ means that the term ‘effective control’ is defined in that section.

Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

A note included in this Act is explanatory and is not part of this Act.

Note See Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Other legislation applies in relation to offences against this Act.

Note 1 Criminal Code

The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1).

The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).

The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

The notes to this section provide a general overview of the scheme of this Act.

Note 1 Restraining orders

A court may make an order (a restraining order) preventing the disposal or other dealing with property. A restraining order may also be made to secure a property for the payment of a penalty order (see note 4).

Property may be restrained even though it is not the offender’s property.

A court that convicts a person of an indictable offence may make an order (a conviction forfeiture order) for the forfeiture to the Territory of tainted property in relation to the offence (whether or not the tainted property is restrained).

If a person is convicted of a serious offence (generally an offence punishable by imprisonment for 5 years or more), all restrained property is, by the operation of this Act, forfeited to the Territory (an automatic forfeiture).

Property may be forfeited even though it is not the offender’s property.

If a court is satisfied on the balance of probabilities that a person has committed a serious offence, it may make an order (a civil forfeiture order) for the forfeiture to the Territory of all restrained property even though the person has not been convicted, or the person has been cleared, of the relevant offence.

Note 4 Penalty orders

A court may order the payment to the Territory (a penalty order) of the value of the tainted property and the advantages and other benefits derived in any way from the commission of an indictable offence and for restrained property be sold to satisfy the penalty order.

Note 5 Exclusion of property from forfeiture and return or compensation for forfeited property

Provision is made for a order that property be excluded from forfeiture (an exclusion order) and forfeited property can be returned or compensation paid for it in certain circumstances. Provision is also made for the buyback of interests in forfeited property.

Note 1 The following concepts are defined in this part:

• abscond—see s 16

• cleared, of an offence—see s 17

• convicted—see s 15 (1)

• derived—see s 12

• effective control, of property—see s 14

• finalised confiscation or criminal proceeding—see s 18

• indictable offence—see s 13 (2)

• offence—see s 13 (1)

• ordinary indictable offence—s 13 (2)

• quashed—see s 15 (3) and (4)

• related offence—see s 13 (3)

• serious offence—see s 13 (2)

• tainted property—see s 10

• unclaimed tainted property—see s 11.

Note 2 Other important concepts include benefits (see s 80), penalty order (see s 82) and relevant court (see s 237).

(1) In this Act:

tainted property, in relation to an offence, means—

(a) property that was used, or was intended by an offender to be used, in relation to the commission of the offence; or

(b) property that was derived by anyone from the commission of the offence; or

(c) property that was derived by anyone from property mentioned in paragraph (a) or (b);

and includes an amount of money held in an account with a financial institution that represents the value of property mentioned in paragraph (a), (b) or (c) that has been directly or indirectly credited to the account.

Note 1 For the meaning of in relation to, see dict.

Note 2 For the meaning of derived, see s 12.

Note 3 Property includes an interest in property, see Legislation Act, dict, pt 1.

(2) For subsection (1) (a), any property found in the possession of an offender at the time of, or immediately after, the commission of the offence is taken to be property that was used, or was intended by the offender to be used, in relation to the commission of the offence, unless the contrary is established by the offender.

1 A car used as a getaway car for an armed robbery (see s (1) (a)).

2 Money and jewellery stolen during the commission of the armed robbery offence (see s (1) (b)).

3 Shares bought using money stolen during the commission of the armed robbery offence, or a mixture of that money and money unconnected with the offence (see s (1) (c) and s 12 (1) (Meaning of derived)).

4 A house in relation to which a mortgage is partly or completely discharged using money stolen during the commission of the armed robbery offence, or a mixture of that money and money unconnected with the offence (see s (1) (c) and s 12 (1)).

5 Money or other property received from the sale of the car, jewellery, shares or house mentioned in examples 1 to 4 (see s (1) (c) and s 12 (1)).

6 Other property purchased using the money mentioned in example 5 (see s (1) (c) and s 12 (1)).

7 Money stolen during the commission of the armed robbery offence is deposited in 1 or more accounts with a credit union and later transferred to a bank account that also contains money unconnected with the offence. The money in the bank account to the value of the money stolen during the commission of the offence is tainted property (see s (1)).

8 Money received from the sale of the car, jewellery, shares or house mentioned in examples 1 to 4 is deposited in a credit union account that also contains money unconnected with the armed robbery offence. The money in the account to the value of the money received from the sale of the car, jewellery, shares or house mentioned in examples 1 to 4 is tainted property (see s (1) and s 12 (1)).

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

In this Act:

unclaimed tainted property means property that—

(a) is tainted property in relation to an offence; and

Note For the meaning of in relation to, see dict.

(b) is not claimed by anyone;

even if it is not possible to identify the offence or an offender.

1 a large quantity of hydroponic equipment and lights for growing plants indoors that is found at premises suspected of being used for the production of drugs and that is not claimed by anyone

2 a large amount of money with traces of cocaine that is found in a house suspected of being used for drug dealing and that is not claimed by anyone

3 a large quantity of jewellery found in a car that has been recently used by several people and that is not claimed by anyone

4 a large amount of money found beneath a bridge in a bag that also contains traces of explosives

Note 1 A claim for property restrained under an unclaimed tainted property restraining order does not, of itself, change or end the restraining order, see s 46 (2).

Note 2 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(1) In this Act:

derived—property or a benefit is derived if it is derived or realised, whether completely or partly and whether directly or indirectly.

See section 10, examples 3 to 6 and 8.

Note 1 For the meaning of benefits, see s 80.

Note 2 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) Property or a benefit is derived by a person if it is derived by someone else at the request or direction of the person.

Jane Citizen commits an indictable offence and then writes a book about the commission of the offence. Ms Citizen directs the book’s publisher to pay the royalties for the book to her husband rather than to herself. The royalties would still be derived by Ms Citizen because they are derived by her husband at her direction. (This may be relevant, for example, for deciding whether they are artistic profits and thus benefits under div 7.1.)

(3) For subsection (2), a request or direction of a person (the first person)—

(a) includes an understanding between the first person and someone else or the first person making it known (directly or indirectly) to someone else that a particular outcome (or an outcome of a particular kind) is wanted or required by the first person; and

(b) may be taken to have been made even though, after all the evidence has been considered, the existence of the request or direction can be found only by inference from the actions of people or from other relevant circumstances.

(1) In this Act:

offence means an offence against the law of the Territory, the Commonwealth, a State or another Territory.

(2) In this Act:

indictable offence includes an offence (however described) against the law of the Commonwealth, a State or another Territory that may be dealt with under a law of the Commonwealth, the State or the other Territory as an indictable offence (or in a way corresponding to the way in which an indictable offence against the law of the Territory may be dealt with), even if it may also be dealt with as a summary offence (however described) in some circumstances.

Note An offence against a Territory law is an indictable offence if it is punishable by imprisonment for longer than 1 year, or is declared by law to be an indictable offence (see Legislation Act, s 190 (1)).

ordinary indictable offence means an indictable offence other than a serious offence.

serious offence means—

(a) an indictable offence that is punishable by imprisonment for 5 years or longer; or

(b) any other indictable offence declared under the regulations to be a serious offence.

(3) For this Act, an offence is related to another offence if the physical elements of the 2 offences are the same, or substantially the same, acts or omissions.

(1) For this Act, property may be subject to the effective control of a person whether or not the person has an interest in it.

Note Interest, in relation to land or other property, means—

(a) a legal or equitable estate in the land or other property; or

(b) a right, power or privilege over, or in relation to, the land or other property.

See Legislation Act, dict, pt 1.

(2) In deciding whether or not property is subject to the effective control of a person, or whether or not there are reasonable grounds to suspect or believe that it is, regard may be had to any relevant matter, including, for example, any of the following:

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

(b) a trust that has a relationship to the property (a relevant trust);

(c) family, personal, business and other relationships between people having an interest in the property, or in a relevant company or relevant trust, and other people.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(3) However, property is taken to be subject to the effective control of a person if—

(a) it is held by someone else on trust or otherwise for the ultimate benefit of the person; or

(b) within 6 years before or after the commission of the offence in relation to which an application is made in a confiscation proceeding, the person disposed of the property without sufficient consideration to someone else.

Note 1 For the meaning of in relation to, see dict.

Note 2 For the meaning of sufficient consideration, see dict.

(1) For this Act, a person is taken to be convicted of an offence if—

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

(b) the person is found guilty, but not convicted, of the offence; or

(c) the person absconds in relation to the offence.

Note 1 Found guilty, of an offence, is defined in the Legislation Act, dict, pt 1 as including—

(a) having the offence taken into account under the Crimes Act 1900, s 357 (which is about taking outstanding charges into account when passing sentence); and

(b) having an order made in relation to the offence under the Crimes Act 1900, s 402 (Conditional release of offenders without proceeding to conviction) or the Children and Young People Act 1999, s 96 (Disposition of young offenders).

Note 2 For the meaning of abscond, see s 16.

(2) The person is taken to be convicted of the offence—

(a) if subsection (1) (a) applies—on the day the person is convicted; or

(b) if subsection (1) (b) applies—on the day the person is found guilty; or

(c) if subsection (1) (c) applies—

(i) on the day the person is committed for trial for the offence; or

(ii) on the day a court, in a confiscation proceeding, makes an order that the evidence is of sufficient weight to support a conviction for the offence.

(3) For this Act, the person’s conviction for the offence is taken to be quashed when—

(a) if subsection (1) (a) applies—the conviction is quashed or set aside; or

(b) if subsection (1) (b) applies because the offence was taken into account in passing sentence for another offence—

(i) the person’s conviction or finding of guilty for the other offence is quashed or set aside; or

(ii) the decision to take the offence into account is quashed or set aside; or

(c) if subsection (1) (b) applies for another reason—the finding of guilty for the offence (however described) is quashed or set aside; or

(d) if subsection (1) (c) applies—the person is brought before a court for the offence, and the person is cleared of the offence.

Note For the meaning of cleared, see s 17.

(4) However, a person’s conviction for an offence is not taken to be quashed if a court quashes or sets aside the conviction or finding of guilty (however described) but orders the person to be retried for the offence.

(1) This section applies to an offender in relation to an indictable offence if—

(a) an indictment is presented against the offender for the offence; and

(b) a warrant is issued for the arrest of the offender for the offence; and

(c) either—

(i) the offender is committed for trial for the offence; or

(ii) a court, in a confiscation proceeding, makes a finding that the evidence is of sufficient weight to support the offender’s conviction for the offence.

(2) For this Act, the offender is taken to have absconded in relation to the offence if—

(a) the offender dies before the warrant is executed; or

(b) at the end of 6 months after the day the warrant is issued, the offender cannot be found; or

(c) at the end of 6 months after the day the warrant is issued—

(i) the offender is not amenable to justice for any other reason; and

(ii) if the offender is outside the ACT—an extradition proceeding against the offender is not on foot; or

(d) at the end of 6 months after the day the warrant is issued—

(i) the offender is not amenable to justice because the offender is outside the ACT; and

(ii) an extradition proceeding against the offender is on foot;

and the extradition proceeding later ends without an order for the offender’s extradition being made.

For this Act, a person is cleared of an offence if—

(a) an indictment for the offence lapses, or is withdrawn or struck out; or

(b) a charge for the offence is withdrawn or discharged; or

(c) the person is acquitted of the offence; or

(d) the person’s conviction for the offence is quashed.

(1) For this Act, a confiscation proceeding is finalised if—

(a) the proceeding lapses, or is withdrawn or struck out; or

(b) the appeal period for an appeal against the final judgment of the court hearing the proceeding ends without an appeal having been made against the judgment; or

(c) if an appeal against the final judgment is made within the appeal period—the appeal is dismissed, withdrawn or struck out, or the appeal is otherwise finalised (within the meaning of this subsection).

(2) For this Act, a criminal proceeding is finalised if—

(a) the offender is cleared of the offence to which the proceeding relates; or

(b) the offender is convicted of an offence to which the proceeding relates, and the appeal period for an appeal against the conviction or finding of guilty (however described) ends without an appeal having been made against it; or

(c) if an appeal is made against the conviction or finding of guilty (however described) within the appeal period—the appeal is dismissed, withdrawn or struck out, or the appeal is otherwise finalised (within the meaning of this subsection) without a retrial having been ordered; or

(d) if a retrial has been ordered—the proceeding on the retrial is finalised (within the meaning of this subsection).

(3) In this section:

appeal period means the period within which an appeal may be made without an extension of time or leave to make the appeal out of time.

In this Act:

restraining order means an order under section 30 (Restraining orders over unclaimed tainted property—making) or section 31 (Restraining orders over other property—making) that a person must not deal with the property stated in the order except in accordance with—

(a) the order; or

(b) another order of a relevant court; or

(c) this Act.

In this Act:

artistic profits restraining order, in relation to an offence, means a restraining order made solely to satisfy a penalty order for artistic profits in relation to the offence.

In this Act:

unclaimed tainted property restraining order means a restraining order made solely over unclaimed tainted property.

Note A claim for property restrained under an unclaimed tainted property restraining order does not, of itself, change or end the restraining order, see s 46 (2).

A restraining order may be made to preserve property so that the property will be available for 1 or more of the following purposes:

(a) for forfeiture under a conviction forfeiture order;

(b) for automatic forfeiture;

(c) for forfeiture under a civil forfeiture order;

(d) to satisfy a penalty order.

Note Pt 5 deals with forfeiture and pt 7 deals with penalty orders.

(1) A person commits an offence if—

(a) the person deals with property; and

(b) the property is subject to a restraining order; and

(c) the person knows that, or is reckless about the fact that, the property is subject to a restraining order; and

(d) the dealing with the property contravenes the order.

Maximum penalty: 500 penalty units, imprisonment for 5 years or both.

(2) A person commits an offence if—

(a) the person deals with property; and

(b) the property is subject to a restraining order; and

(c) the dealing with the property contravenes the order; and

(d) either of the following applies:

(i) the restraining order, or details of the order, were recorded in a statutory property register under section 50 (2) (Restraining orders—registration in statutory property registers) when the person dealt with the property;

(ii) the person was given notice of the order under section 34 (Restraining orders—notice of making) before the person dealt with the property.

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

(3) Strict liability applies to subsection (2) (b), (c) and (d).

(1) The DPP may apply to a relevant court for an order that a dealing with restrained property be set aside if—

(a) the dealing was in contravention of the restraining order; and

(b) the dealing—

(i) was not for sufficient consideration; or

(ii) transferred property to a person who was not acting honestly; or

(iii) transferred property to a person who did not take reasonable care to establish that the property may be lawfully acquired by the person

(2) On application under subsection (1), the court may make an order setting aside a dealing with property in contravention of a restraining order.

(3) The order may be expressed to take effect on—

(a) the day when the dealing took place; or

(b) the day when the order setting aside the dealing is made.

(4) If the court makes an order mentioned in subsection (3) (b), the court must declare the rights of anyone who acquired an interest in the property on or after the day of the dealing and before the day the order is made.

Note 1 For general provisions about a proceeding for a restraining order (which is a confiscation proceeding—see s 235), see pt 14.

Note 2 In particular, no advance notice to anyone is required of the application for the order, and the application may be heard in closed court, without the offender or the public being present, see s 242.

(1) The DPP may apply to a relevant court for a restraining order over unclaimed tainted property.

(2) The application must state the following:

(a) that the application is for an unclaimed tainted property restraining order;

(b) the property sought to be restrained.

(3) The application must be supported by an affidavit under section 28 (Restraining orders over unclaimed tainted property—affidavit supporting application).

(4) An application for an unclaimed tainted property restraining order must be made only in relation to unclaimed tainted property (but may be made at the same time as an application for a restraining order over other property).

(1) The DPP may apply to a relevant court for a restraining order over any of the following:

(a) stated property of a person;

(b) stated property of a person and all other property of the person (including property acquired after the making of the order);

(c) all property of a person (including property acquired after the making of the order);

(d) all property of a person (including property acquired after the making of the order) other than stated property.

Note 1 A reference to a person generally includes a reference to a corporation as well as an individual, see Legislation Act, s 160. (See also the Legislation Act, dict, pt 1, def person.)

Note 2 Property includes an interest in property, see Legislation Act, dict, pt 1.

(2) The application must state the following:

(a) the offence to which the application relates;

(b) when it is alleged the offence was committed;

(c) the person who is alleged to have committed the offence;

(d) the person whose property the application relates to;

(e) the property sought to be restrained (including whether it is property of the offender or someone else);

Note Offender includes a corporation, see dict.

(f) whether the application is for an artistic profits restraining order.

(3) The application must be supported by an affidavit under section 29 (Restraining orders over other property—affidavit supporting application).

(4) For subsection (2) (a), the application need not specify a particular offence and it is sufficient if the application states that some offence or other was committed.

(5) For subsection (2) (b), the application need not specify a particular time or day and it is sufficient if the application states a period within which the offence was committed.

(6) To remove any doubt—

(a) an application for a restraining order under this section may be made in relation to an interest (or interests) in property; and

Note Property includes an interest in property, see Legislation Act, dict, pt 1.

(b) an application for a restraining order under this section may be made in relation to 2 or more offences; and

(c) an application for a restraining order under this section may be made in relation to the property of 2 or more people; and

(d) this section does not apply to an application for a restraining order over unclaimed tainted property.

(1) This section does not apply to an application for—

(a) an artistic profits restraining order; or

(b) an unclaimed tainted property restraining order.

(2) An application for a restraining order in relation to an ordinary indictable offence must be made before the end of the longer of the following periods:

(a) if an indictment has been presented against the offender for the offence, and the offender has not been convicted or cleared of the offence—2 years after the day the indictment was presented;

(b) if the offender has been convicted of the offence (and not cleared)—2 years after the day of the conviction;

(c) in any case—6 years after the day the offence was committed (or is alleged to have been committed).

Note 1 For the meaning of in relation to, see dict.

Note 2 The court may allow leave for an application to be made after a time fixed by this section in certain circumstances (see s 49 and s 245).

(3) An application for a restraining order in relation to a serious offence must be made before the end of the longer of the following periods:

(a) if an indictment has been presented against the offender for the offence, and the offender has not been convicted or cleared of the offence—2 years after the day the indictment was presented;

(b) if the offender has been convicted of the offence—2 years after the day of the conviction;

(c) in any case—6 years after the day the offence was committed (or is alleged to have been committed).

Note The court may allow leave for an application to be made after a time fixed by this section in certain circumstances (see s 49 and s 245).

(1) An affidavit by a police officer supporting an application under section 25 (Restraining orders over unclaimed tainted property—application) for an unclaimed tainted property restraining order must state—

(a) that the police officer suspects that the property is unclaimed tainted property; and

(b) that the property has not been claimed by anyone.

Note No time limit applies to an application for an unclaimed tainted property restraining order, see s 27 (1) (b).

(2) The affidavit must state that the police officer believes that the property sought to be restrained may be required to satisfy a purpose mentioned in section 22 (Restraining orders—purposes).

(3) For subsection (2), no particular purpose need be stated in the affidavit.

(4) The affidavit must state the grounds for each suspicion or belief of the police officer stated in the affidavit.

(1) An affidavit by a police officer supporting an application under section 26 (Restraining orders over other property—application) for a restraining order must state—

(a) that the officer believes that an indictment has been presented against the offender for a stated indictable offence, or that the offender has been convicted of a stated indictable offence; or

(b) that the officer suspects that the offender has committed a stated indictable offence, and that it is intended, within a stated period—

(i) for an ordinary indictable offence—to present an indictment against the offender for the offence (or a related indictable offence); or

(ii) for a serious offence—

(A) to present an indictment against the offender for the offence (or a related serious offence); or

(B) to apply for a civil forfeiture order or a penalty order in relation to the offence (or a related serious offence).

(2) Subsection (1) (b) does not require the police officer to specify a particular offence in the affidavit and it is sufficient if the police officer suspects that the offender has committed a particular kind of offence and the affidavit describes the nature of the offence in general terms.

(3) If the application is not for an artistic profits restraining order, the affidavit must state that the police officer believes that the application is being made within the relevant period mentioned in section 27 (Restraining orders—time for making certain applications) for the offence to which the application relates.

Note No time limit applies to an application for an artistic profits restraining order, see s 27 (1) (a).

(4) For subsection (3), if the application relates to a serious offence, it is sufficient if the police officer believes that the offence was committed within the relevant period mentioned in section 27, and it is not necessary for the officer to believe that the offence was committed on any particular day or time within the relevant period.

(5) The affidavit must state, for the property mentioned in the application, or for each stated part of the property—

(a) that the officer suspects that the property is either the offender’s property or the property of someone else; and

(b) for property that the officer suspects is the property of someone else—

(i) that the property is tainted property; or

(ii) that the property is subject to the offender’s effective control.

(6) The affidavit must state that the police officer believes that—

(a) the property sought to be restrained may be required to satisfy a purpose mentioned in section 22 (Restraining orders—purposes); and

(b) if the application is for an artistic profits restraining order—the property sought to be restrained may be required to satisfy a penalty order for artistic profits in relation to the offence.

(7) For subsection (6) (a), no particular purpose need be stated in the affidavit.

(8) The affidavit must state the grounds for each belief or suspicion of the police officer stated in the affidavit.

(1) This section applies if an application is made under section 25 (Restraining orders over unclaimed tainted property—application) to a relevant court for an unclaimed tainted property restraining order in relation to an offence.

(2) The relevant court must make a restraining order over the property to which the application relates if, having regard to the police officer’s affidavit supporting the application and any other evidence before the court, the court is satisfied that there are reasonable grounds for the officer’s suspicions and beliefs stated in the affidavit.

Note A claim for property restrained under an unclaimed tainted property restraining order does not, of itself, change or end the restraining order, see s 46 (2).

(3) The restraining order may direct the public trustee to take control of the restrained property.

Note For the commencement of a restraining order, see Legislation Act, s 73 (4).

(4) To remove any doubt, for making a restraining order under this section, it is irrelevant whether there is any risk of the property being dealt with in a way that would defeat or hinder the purposes of this Act.

(1) This section applies if an application is made under section 26 (Restraining orders over other property—application) to a relevant court for a restraining order in relation to an offence.

(2) The relevant court must make a restraining order over the property to which the application relates if, having regard to the police officer’s affidavit supporting the application and any other evidence before the court—

(a) the court is satisfied that there are reasonable grounds for the officer’s beliefs and suspicions stated in the affidavit; and

(b) if an indictment has not been presented for the offence, or the offence is a serious offence of which the offender has been cleared—the court is satisfied that, within 6 weeks after the date of the order or (if allowed by the court) a longer period of not longer than 3 months after that date—

(i) for an ordinary indictable offence—it is intended to present an indictment against the offender for the offence (or a related indictable offence); or

(ii) for a serious offence—

(A) it is intended to present an indictment against the offender for the offence (or a related serious offence); or

(B) it is intended to apply for a civil forfeiture order or a penalty order in relation to the offence (or a related serious offence).

(3) The restraining order may do either or both of the following:

(a) direct the public trustee to take control of the restrained property or stated restrained property;

(b) provide, under section 37 or 38, for living and business expenses, or legal expenses, to be met out of the restrained property.

Note For the commencement of a restraining order, see Legislation Act, s 73 (4).

(4) The relevant court may refuse to make the restraining order if the DPP does not give the relevant court any undertaking that the court considers appropriate about the payment of damages or costs in relation to the making or operation of the order.

(5) To remove any doubt—

(a) a restraining order may be made under this section in relation to an interest (or interests) in property; and

Note Property includes an interest in property, see Legislation Act, dict, pt 1.

(b) a restraining order may relate to 2 or more offences committed (or alleged to have been committed) by an offender; and

Note Offender includes a corporation, see dict.

(c) a restraining order may relate to the property of 2 or more people; and

(d) for making a restraining order under this section, it is irrelevant whether there is any risk of the property being dealt with in a way that would defeat or hinder the purposes of this Act.

(1) For section 31 and to remove any doubt, if the relevant court is satisfied that there are reasonable grounds for the police officer’s belief that a serious offence was committed by the offender within the relevant period mentioned in section 27 (Restraining orders—time for making certain applications), the court must not refuse to make a restraining order in relation to the offence only because the court is not satisfied—

(a) that the officer had any belief that a particular serious offence was committed within the relevant period; or

(b) that the officer had any belief about the particular day or time when the offender committed the offence within the relevant period; or

(c) that there are reasonable grounds for any belief by the officer about anything mentioned in paragraph (a) or (b).

Note For the meaning of in relation to, see dict.

(2) Also, for section 31 and to remove any doubt, the relevant court must not refuse to make a restraining order in relation to the offender only because—

(a) an indictment has not been presented against the offender for the offence; or

(b) the offender has not been convicted of the offence; or

(c) the offender has been cleared of the offence, including being cleared after having been convicted of the offence; or

(d) a doubt is raised about whether the person committed the offence.

(1) A restraining order must state that a person must not deal with the property stated in the order except in accordance with—

(a) the order; or

(b) another order of a relevant court; or

(c) this Act.

(2) A restraining order (other than an unclaimed tainted property restraining order) must also state—

(a) that it is a restraining order under this Act; and

(b) the person (or people) whose property it applies to; and

(c) for each person to whose property it applies to—the property to which it applies, including whether it applies to property acquired after the making of the order; and

(d) if section 31 (2) (b) (Restraining orders over other property—making) applies to the restraining order—the applicable period under the paragraph; and

Note The restraining order ends unless an indictment is presented or, for a serious offence, a forfeiture or penalty application is made, before the end of the stated period (see div 4.3, tables 1 and 2).

(e) if the order directs the public trustee to take control of the restrained property or stated restrained property—the direction and the property to which it applies; and

(f) if the relevant court making the order has given a direction under section 35 (Restraining order proceedings—restrictions on disclosure)—

(i) the direction given by the court; and

(ii) the effect of section 36 (Restraining orders—disclosure offences) in relation to the direction; and

(g) if the order provides, under section 37 or 38, for living and business expenses, or legal expenses, to be met out of the restrained property—

(i) the kind of expenses that may be met out of the restrained property; and

(ii) the period during which the expenses may be met out of the restrained property; and

(iii) the maximum amount of the expenses that may be met out of the restrained property.

(3) An unclaimed tainted property restraining order must also state—

(a) that it is an unclaimed tainted property restraining order under this Act; and

(b) the property to which it applies; and

(c) if the relevant court making the order has given a direction under section 35—

(i) the direction given by the court; and

(ii) the effect of section 36 in relation to the direction; and

(d) that, unless a relevant court makes an order that stops the operation of the restraining order over the property, the property will be automatically forfeited under this Act to the Territory at the end of 14 days after the day the order is made.

(4) A failure by a relevant court to comply with this section in relation to the restraining order does not invalidate the restraining order or any forfeiture order or automatic forfeiture made in relation to the property restrained under the restraining order.

(1) If a court makes a restraining order over property, the DPP must give a copy of the order to—

(a) for an unclaimed tainted property restraining order—anyone the DPP suspects may have an interest in the property; and

(b) for any other restraining order—the owner of the restrained property and anyone else the DPP suspects may have an interest in the property.

Note For how documents may be served, see Legislation Act, pt 19.5.

(2) A relevant court may order the DPP to—

(a) give a copy of a restraining order, the application for the order or the supporting affidavit to anyone and may give directions about how any document is to be given to the person; or

(b) give notice of the order to anyone and may give directions about how the notice is to be given.

(3) Subsections (1) and (2) have effect subject to any direction of the court under section 35.

(1) On application by the DPP, a relevant court hearing an application for a restraining order may give directions prohibiting or restricting the publication or disclosure of all or any of the following:

(a) the fact that an application for the order, or that a restraining order, has been made;

(b) the application for the order;

(c) the supporting affidavit for the order and any other affidavit filed in relation to the application;

(d) any information about the proceeding (whether or not a hearing has been held);

(e) any evidence given, statement made or thing done during the proceeding;

(f) any information, document or thing derived from anything mentioned in this subsection.

1 that the application for the restraining order and a stated part of the supporting affidavit not be disclosed to the person against whom the restraining order is made until the court has decided an application for another restraining order against someone else’s property

2 that the supporting affidavit must be made available only to the offender’s lawyer

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) In deciding whether to give a direction under subsection (1), the court must have regard to whether the direction—

(a) would promote the purposes of this Act; or

(b) is desirable to protect the integrity of an investigation (however described) for any purpose or a prosecution of an offence.

(3) The court may also have regard to any other relevant matter in deciding whether to give a direction under subsection (1).

Note An offence against this section is a strict liability offence, see s (7).

(1) A person commits an offence if—

(a) a relevant court has given a direction under section 35 (1) prohibiting or restricting the publication or disclosure of a matter mentioned in the subsection; and

(b) the person has notice of the direction (whether by being given a copy of the restraining order to which the direction relates or otherwise); and

(c) the person publishes or discloses the matter to someone else.

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

(2) A person commits an offence if—

(a) a relevant court has given a direction under section 35 (1) prohibiting or restricting the publication or disclosure of a matter mentioned in the subsection; and

(b) the person has notice of the direction (whether by being given a copy of the restraining order to which the direction relates or otherwise); and

(c) the person publishes or discloses information to someone else; and

(d) the other person could infer from the information the matter to which the direction relates.

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

(3) Subsections (1) and (2) do not apply if the publication or disclosure is made to any of the following entities in the circumstances mentioned for the entity:

(a) a police officer—in any circumstances;

(b) an officer, employee or agent of the person—to ensure that the order is complied with and the person to whom the publication or disclosure is made is given notice of the direction (whether by being given a copy of the restraining order to which the direction relates or otherwise) by the person making the publication or disclosure;

(c) a lawyer—to obtain legal advice or representation in relation to the order;

(d) a relevant court—with the court’s leave.

Note The application for leave, and any proceeding with the court’s leave, must be heard in closed court, see s (8).

(4) Also, subsections (1) and (2) do not apply if the publication or disclosure is made—

(a) by a police officer in the exercise of the officer’s functions; or

(b) for the purpose of giving or obtaining legal advice, or making legal representations, in relation to the order.

(5) A person commits an offence if—

(a) a relevant court has given a direction under section 35 (1) prohibiting or restricting the publication or disclosure of a matter mentioned in the subsection; and

(b) the person receives information in relation to the matter in accordance with subsection (3) or (4); and

(c) the person ceases to be a person mentioned in subsection (3) or (4); and

(d) the person publishes or discloses the matter to someone else.

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

(6) A person commits an offence if—

(a) a relevant court has given a direction under section 35 (1) prohibiting or restricting the publication or disclosure of a matter mentioned in the subsection; and

(b) the person receives information in relation to the matter in accordance with subsection (3) or (4); and

(c) the person ceases to be a person mentioned in subsection (3) or (4); and

(d) the person publishes or discloses information to someone else; and

(e) the other person could infer from the information the matter to which the direction relates.

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

(7) An offence against this section is a strict liability offence.

(8) For subsection (3) (d), an application for leave, and any proceeding with the court’s leave, must be heard in closed court.

(1) A relevant court may, in a restraining order or an order under section 39 (Additional orders about restraining orders and restrained property) varying a restraining order, allow any of the following expenses to be met out of the restrained property of a person, or a stated part of the property:

(a) the living and business expenses of the person (other than the person’s legal expenses in defending a criminal charge);

(b) the living expenses of a dependant of the person.

Note For legal expenses in defending a criminal charge, see s 38.

(2) However, the court must not allow expenses to be met out of restrained property unless the person satisfies the court that—

(a) the expenses are reasonable; and

(b) the expenses are necessary to avoid severe hardship to the person or the person’s dependants; and

(c) the expenses cannot be met out of property of the person not subject to a restraining order; and

(d) any property to be released from restraint for the expenses was lawfully acquired by the person, is not tainted property and does not have evidentiary value in any criminal proceeding.

(3) The regulations may—

(a) prescribe matters to which the court may, must or must not have regard for subsection (2) (a) or (b); and

(b) prescribe, or make provision in relation to, the maximum amount of living or business expenses of a person that may be allowed (for a period or otherwise).

(4) Regulations made for this section may apply, adopt or incorporate (with or without change) a provision of a law of the Commonwealth or a State, or an instrument, as in force from time to time.

Note 1 The text of an applied, adopted or incorporated law or instrument, whether applied as in force from time to time or at a particular time, is taken to be a notifiable instrument if the operation of the Legislation Act, s 47 (5) or (6) is not disapplied (see s 47 (7)).

Note 2  A notifiable instrument must be notified under the Legislation Act.

(5) In this section:

dependant, of a person, means the person’s domestic partner or a child of the person.

domestic partner, of a person, means a person who lives with the person in a domestic partnership, and includes a spouse.

domestic partnership means the relationship between 2 people, whether of a different or the same sex, living together as a couple on a genuine domestic basis.

(1) A relevant court may, in a restraining order or an order under section 39 (Additional orders about restraining orders and restrained property) varying a restraining order, allow a person’s legal expenses in defending a criminal charge to be met out of the restrained property of the person, or a stated part of the property.

(2) However, the court must not allow the legal expenses to be met out of restrained property unless—

(a) the person applies for an order for the legal expenses to be met out of restrained property; and

(b) the application is supported by an affidavit of the person setting out all of the person’s interests in property, including any property of the person outside Australia, and the person’s liabilities; and

(c) the court is satisfied that—

(i) the affidavit is a true statement of the person’s interests in property and the person’s liabilities; and

(ii) the person has taken all reasonable steps to bring any property outside Australia within the jurisdiction of the court; and

(iii) the legal expenses cannot be met out of property of the person not subject to a restraining order; and

(iv) any property to be released from restraint for the expenses was lawfully acquired by the person, is not tainted property and does not have evidentiary value in any criminal proceeding.

(3) If the court makes or varies a restraining order that allows the legal expenses to be met out of restrained property, the court must include in the order conditions ensuring that—

(a) restrained property is used only to meet legal fees, disbursements and out-of-pocket expenses incurred by the person in defending the criminal charge; and

(b) all legal fees, disbursements and out-of-pocket expenses are properly and reasonably incurred by the person; and

(c) all legal fees are calculated in accordance with the scale of costs for criminal matters determined by the legal aid commission in accordance with the Legal Aid Act 1977, section 32 (8), (9) and (10).

(1) A relevant court may, when it makes a restraining order or at any later time before the order ends, make any additional order that the court considers appropriate in relation to the restraining order or restrained property (other than an order mentioned in subsection (2)).

1 an order varying the property subject to the restraining order (other than an order excluding property from the restraining order)

2 an order authorising the disposal of the property subject to the restraining order to satisfy a penalty order or execution levied against the property

3 an order varying any condition to which the restraining order is subject.

4 an order that living or business expenses of a person, or legal expenses of a person to defend a criminal charge, be met out of restrained property

5 an order for the carrying out of any undertaking about the payment of damages or costs given by the Territory in relation to the making or operation of the restraining order

6 an order for the examination of anyone before the court, or an officer of the court, about the affairs (including the nature and location of any property) of the owner of restrained property or of the offender

7 an order for the examination of anyone before the court, or an officer of the court, about any property that may be tainted property

8 an order directing the owner of the restrained property or anyone else to give to a stated person, within a stated period, a sworn statement about stated particulars of the restrained property

9 an order directing the registrar-general not to register any instrument affecting restrained property except in accordance with the order

10 an order directing the owner of restrained property or anyone else to do anything necessary or convenient to be done to allow the public trustee to take control of the property in accordance with the restraining order, including anything necessary or convenient to be done to bring the property within the jurisdiction

11 if the restraining order directs the public trustee to take control of property, an order regulating how the public trustee may exercise functions under the restraining order or an order deciding any question about the property

Note 1 For general provisions about additional orders under this section (which is a confiscation proceeding—see s 235), see pt 14.

Note 2 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) However, the court must not make any of the following orders under subsection (1):

(a) an order revoking or otherwise ending a restraining order;

(b) an order for the extension of the period a restraining order is to remain in force;

(c) an order for the exclusion of property from a restraining order.

Note 1 For the revocation of a restraining order, see s 43 and s 44.

Note 2 For the extension of the operation of a restraining order, see s 49.

Note 3 For the exclusion of property from a restraining order, see pt 6.

(3) Also, the court must not make an order that living or business expenses of a person, or legal expenses of a person to defend a criminal charge, be met out of restrained property unless the order is made in accordance with section 37 or 38 (as appropriate).

(4) If the DPP proposes to oppose an application by a person under this section for an additional order, the DPP must give the applicant, and anyone else to whom notice of the application was given, written notice of the grounds on which the application will be opposed.

(5) To remove any doubt, an additional order under this section does not end only because the restraining order ends or the property to which the additional order relates ceases to be restrained property.

A person commits an offence if—

(a) a relevant court makes an additional order under section 39; and

(b) the person has notice of the order (whether by being given a copy of the order or otherwise); and

(c) the person contravenes the order.

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

In this division:

forfeiture or penalty application means an application for a forfeiture order or a penalty order.

A restraining order operates (or continues to operate) until it ends under this division (including in accordance with an order under section 49 (Extension of time for restraining orders)).

(1) A person with an interest in restrained property may apply to the court that made the restraining order for the revocation, by order, of the restraining order if the DPP did not give the person notice of the application for the order.

(2) The court must not make an order revoking the restraining order unless it is satisfied that there were not and are no longer, or there are no longer, sufficient grounds for making the order.

(3) However, if the DPP has told the court that the restraining order applies to property that has evidentiary value in a criminal proceeding, the court must not revoke the restraining order without the DPP’s agreement but may, by order, vary the restraining order to exclude any part of the property that the DPP has told the court does not have evidentiary value.

(4) If the DPP proposes to oppose an application by a person under this section for the revocation of a restraining order, the DPP must give the applicant, and anyone else to whom notice of the application was given, written notice of the grounds on which the application will be opposed.

(1) The owner of restrained property may apply to the court that made the restraining order for the restraining order to be revoked or varied, by order, under this section.

(2) The court must not make an order revoking the restraining order unless the DPP has told the court that the owner has given—

(a) security satisfactory to the DPP to the value estimated by the DPP of any order that may be sought under this Act in relation to the offence in relation to which the order was made (and any related offence); or

(b) an undertaking satisfactory to the DPP about the restrained property.

(3) However, if the owner can only give security or an undertaking that partly satisfies the DPP, the court may, by order, vary the restraining order to exclude particular property in relation to which the DPP has told the court that satisfactory security or a satisfactory undertaking has been given.

(4) Also, if the DPP has told the court that the restraining order applies to property that has evidentiary value in a criminal proceeding, the court must not revoke the restraining order without the DPP’s agreement but may, by order, vary the restraining order to exclude any part of the property that the DPP has told the court does not have evidentiary value.

(5) If the DPP proposes to oppose an application by a person under this section for the revocation of a restraining order, the DPP must give the applicant, and anyone else to whom notice of the application was given, written notice of the grounds on which the application will be opposed.

(6) The court may order that the revocation or variation of a restraining order under this section takes effect at a stated time or on the happening of a stated event.

(1) A restraining order over particular property ends—

(a) if the restraining order stops applying to the property in accordance with an order under this Act (for example, an exclusion order); or

(b) if the property is forfeited under this Act—when the property vests in law in the Territory and the public trustee takes control of the property; or

(c) if the property is disposed of by the public trustee to satisfy a penalty order; or

(d) when the restraining order ends under this division.

Note 1 On forfeiture, restrained property vests in the Territory. However, registrable property does not vest in law in the Territory until the Territory’s interest is registered in the appropriate register. Until then, it is vested in equity in the Territory. (See s 108 and s 109.)

Note 2 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) To remove any doubt, the ending of a restraining order over particular property does not affect the operation of the restraining order in relation to other property restrained under the order.

Note For the meaning of in relation to, see dict.

(1) An unclaimed tainted property restraining order over property ends if—

(a) the restraining order stops applying to the property in accordance with an order under this Act (for example, an exclusion order); or

(b) the automatic forfeiture of the property is fully satisfied.

Note 1 For the meaning of fully satisfied, see dict.

Note 2 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) If a person claims an interest in the property to which the unclaimed tainted property restraining order applies, the order does not cease to be an unclaimed tainted property restraining order, or cease to apply to the property, only because of the making of the claim.

(3) The relevant court may, on the application of the DPP while the order is in force, order that the restraining order is to end earlier than otherwise provided for by this section.

(1) This section applies to an offender over whose property a restraining order has been made in relation to an ordinary indictable offence.

(2) However, this section does not apply if the restraining order was also given in relation to a related serious offence, or is varied to apply to a related serious offence.

(3) The restraining order ends for the circumstances stated in table 1, column 2 at the time indicated for those circumstances in column 3.

Note 1 The restraining order may continue to operate in relation to related ordinary indictable offences, see s (6).

Note 2 For the ending of forfeiture and penalty orders for ordinary indictable offences, see—

• s 56 (When conviction forfeiture order ends)

• s 98 (When penalty order ends).

(4) A reference in table 1 to a person being convicted of the offence mentioned in subsection (1) includes a reference to the person being convicted of a related offence instead of the offence mentioned in subsection (1).

(5) For table 1, items 4 and 6, if more than 1 forfeiture or penalty application is made within the period stated in the item, column 2, the restraining order ends at the latest time that it would end if any of those applications were the only forfeiture or penalty application made.

(6) If, within the period stated in the restraining order under section 33 (2) (d) (Restraining order—contents), an indictment is presented against the offender for another ordinary indictable offence or offences related to the offence mentioned in subsection (1) (the primary offence), the restraining order ends at the later of the following times:

(a) the time that it would end if there were no related offences;

(b) the latest time that it would end if—

(i) the related offence or any of the related offences, taken by itself, were the primary offence; and

(ii) there were no other offences in relation to which the restraining order had been made.

(7) The relevant court may, on the application of the DPP while the order is in force, order that the restraining order is to end earlier than otherwise provided for by this section.

(1) This section applies to an offender over whose property a restraining order has been made in relation to a serious offence.

(2) The restraining order ends for the circumstances stated in table 2, column 2 at the time indicated for those circumstances in column 3.

Note 1 The restraining order may continue to operate in relation to related serious offences, see s (5).

Note 2 For the ending of forfeiture and penalty orders for serious offences, see—

• s 56 (When conviction forfeiture order ends)

• s 71 (When civil forfeiture order ends)

• s 98 (When penalty order ends).

Note 3 For the ending of automatic forfeiture for serious offences, see s 61.

(3) A reference in table 2 to a person being convicted of the offence mentioned in subsection (1) includes a reference to the person being convicted of a related offence instead of the offence mentioned in subsection (1).

(4) For table 2, item 4, if more than 1 forfeiture or penalty application is made before the restraining order ends under item 1, 2 or 3, the restraining order ends at the latest time that it would end if any of those applications were the only forfeiture or penalty application made.

(5) If, within the period stated in the restraining order under section 33 (2) (d) (Restraining order—contents), an indictment is presented against the offender for another offence or offences related to the offence mentioned in subsection (1) (the primary offence), the restraining order ends at the later of the following times:

(a) the time that it would end under this section if there were no related offences;

(b) the latest time that it would end under this section or section 47 (When restraining order ends—ordinary indictable offences) if—

(i) the related offence or any of the related offences, taken by itself, were the primary offence; and

(ii) there were no other offences in relation to which the restraining order had been made.

(6) The relevant court may, on the application of the DPP while the order is in force, order that a restraining order ends earlier than otherwise provided for by this section.

(1) This section applies to an offender over whose property a restraining order is or has been in force in relation to the commission (or the alleged commission) of an indictable offence, despite anything else in this Act.

(2) On the application of the DPP, the court that made the restraining order may make either or both of the following orders:

(a) an order that the restraining order is to remain in force for a stated period (or as stated in the order);

(b) an order that a restraining order that has ended is to be revived for a stated period (or as stated in the order).

(3) The order may be stated to have effect—

(a) immediately; or

(b) at a stated time; or

(c) if a stated event happens.

(4) The court may make an order under this section only if satisfied that—

(a) any additional property to which the application relates was (or will be) derived from the offence, or identified, only after the restraining order ended (or would otherwise end); or

(b) necessary evidence for the making of a forfeiture or penalty application has (or will) become available only after the restraining order ended (or would otherwise end); or

(c) if an automatic forfeiture in relation to a serious offence ends because the offender is cleared of the offence—it is desirable in relation to an application for a civil forfeiture order or a penalty order under section 85 (Penalty orders—commission of serious offences); or

(d) it is otherwise desirable having regard to the purposes of this Act.

(1) This section applies if a restraining order is over property that may be recorded in a statutory property register

Note A registered interstate restraining order is taken to be a restraining order under this Act (see s 138).

(2) The restraining order, or details of the restraining order, may be recorded in the register on application by a responsible authority.

(3) Anyone who acquires an interest in the property after the recording of the restraining order in the register is taken to have notice of the restraining order at the time of acquisition.

(4) Without limiting subsection (2), if the restraining order is over land registered under the Land Titles Act 1925—

(a) the responsible authority may lodge a copy of the restraining order with the registrar-general for registration under the Land Titles Act 1925, section 104 (Lodging of caveat); and

(b) the responsible authority is, on behalf of the Territory, taken to be a person claiming an interest in the land to which the restraining order relates; and

(c) to remove any doubt, that Act, section 104 (5) does not apply to the registered restraining order.

Note The Land Titles Act 1925, s 104 (5) allows certain dealings to be registered unless the caveat prohibits them. However, this Act, s 23 prohibits such a dealing.

(5) If the property ceases to be restrained property, the responsible authority must apply for the cancellation of the restraining order’s registration in the statutory property register.

(6) Without limiting subsection (5), if the restraining order is over land registered under the Land Titles Act 1925, the responsible authority must lodge a notice of the ending of the restraining order with the registrar-general for registration under that Act.

(7) In this section:

responsible authority means—

(a) the DPP; or

(b) if the public trustee has taken control of the property under this Act—the public trustee; or

(c) for a registered interstate restraining order—anyone who is authorised under the corresponding law under which the order was made to register a restraining order, or details of a restraining order, in a statutory property register.

(1) A restraining order over the property of a person does not prevent the levying of execution against the property, entirely or in part, in satisfaction of a penalty order in force against the person.

(2) However, the property must not be disposed of, or otherwise dealt with, except in accordance with an order of a relevant court under section 39 (1) (Additional orders about restraining orders and restrained property).

Note For general provisions about a proceeding for a conviction forfeiture order (which is a confiscation proceeding—see s 235), see pt 14.

In this Act:

conviction forfeiture order means an order under section 54 (Conviction forfeiture orders—making) for the forfeiture to the Territory of tainted property in relation to an indictable offence.

(1) The DPP may apply to a relevant court for a conviction forfeiture order against a person.

Note A reference to a person generally includes a reference to a corporation as well as an individual, see Legislation Act, s 160. (See also the Legislation Act, dict, pt 1, def person.)

(2) The application may be made before or after, or at the same time as, the person’s conviction for an indictable offence.

(3) However, if the person has been convicted of the offence, the DPP must make the application within 2 years after the day of the conviction.

Note The court may allow leave for an application to be made after the time fixed by this section in certain circumstances (see s 245).

(1) On application under section 53, the court must make an order for the forfeiture to the Territory of tainted property in relation to the indictable offence if satisfied that—

(a) the offender has been convicted of the offence; and

(b) the offender has not been cleared of the offence; and

(c) the property, or any of the property, to which the application relates is tainted property in relation to the offence.

(2) If a court makes the order, it must state in the order—

(a) the property to which it applies; and

(b) what it considers to be the value of the property (other than money) to be forfeited to the Territory under the order at the time the order is made.

(1) The property to which the conviction forfeiture order applies is forfeited to the Territory at the end of 14 days after the day the order is made, except so far as the property is excluded from forfeiture under an exclusion order.

Note 1 For the commencement of a restraining order, see Legislation Act, s 73 (4).

Note 2 The effect of an exclusion order for property subject to forfeiture is that the property is excluded from forfeiture, see s 74 (c).

(2) However, if an application for an exclusion order in relation to the property, or a part of the property, has been made (but not decided) before the end of the 14-day period, the property (or that part) is not forfeited until the proceeding in relation to the exclusion order is finalised.

(1) A conviction forfeiture order ends if—

(a) the offender is cleared of the offence to which the order relates, and all related offences (if any); or

(b) the order is reversed or set aside on appeal; or

(c) the order is fully satisfied.

Note For the meaning of fully satisfied, see dict.

(2) The order is satisfied for a particular interest in forfeited property if the interest is bought back under section 126 (Buyback orders—buying interest in property).

Note After the forfeiture of property, the offender may recover the property or its value in certain circumstances (see div 9.5).

This division does not apply to property restrained under an unclaimed tainted property restraining order.

Note For the forfeiture of unclaimed tainted property, see div 5.3.

(1) This section applies if—

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

(b) a restraining order (other than an artistic profits restraining order) is made, whether before or after the conviction, over property in relation to the offence or a related serious offence committed by the person.

Note A reference to a person generally includes a reference to a corporation as well as an individual, see Legislation Act, s 160. (See also the Legislation Act, dict, pt 1, def person.)

(2) The restrained property is forfeited to the Territory at the end of whichever of the following periods applies (the relevant 14-day period), except so far as the property is excluded from forfeiture under an exclusion order:

(a) if the restraining order was made before the conviction—14 days after the day of conviction;

(b) if the restraining order was made at the same time as or after the conviction—14 days after the day the restraining order comes into force.

Note 1 For the commencement of a restraining order, see Legislation Act, s 73 (4).

Note 2 The effect of an exclusion order for property subject to forfeiture is that the property is excluded from forfeiture, see s 74 (c).

(3) However, if an application for an exclusion order in relation to the property, or a part of the property, has been made (but not decided) before the end of the relevant 14-day period, the property (or that part) is not forfeited until the proceeding in relation to the exclusion order is finalised.

(1) The DPP may apply to a relevant court for an order declaring that property has been automatically forfeited under this division.

(2) If the relevant court is satisfied that the property has been automatically forfeited under this division, the court must make the order and state in the order the property to which it applies.

(3) The registrar of the relevant court may exercise the functions of the court for this section.

Note For general provisions about a proceeding for an order under this section (which is a confiscation proceeding—see s 235), see pt 14.

(1) A relevant court may, when it convicts a person of a serious offence or at any later time, make any order that it considers appropriate for giving effect to an automatic forfeiture of property.

1 an order for the examination of anyone before the court, or an officer of the court, about any property that might be forfeited because of the conviction

2 an order directing the owner of property that might be forfeited because of the conviction, or anyone else, to give to a stated person, within a stated period, a sworn statement about stated particulars of the property

3 an order directing the owner of property that might be forfeited because of the conviction, or anyone else, to do anything necessary or convenient to be done to allow the public trustee to take control of the property, including anything necessary or convenient to be done to bring the property within the jurisdiction

4 an order in relation to the registration of title to, or charges over, property under a Territory law

Note  An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) The order may be made on the court’s initiative, or on the application of any of the following people:

(a) the DPP;

(b) the offender;

(c) the public trustee;

(d) anyone with an interest in property to which the order relates;

(e) anyone else with the court’s leave.

Note For general provisions about a proceeding for an order under this section (which is a confiscation proceeding—see s 235), see pt 14.

(3) A person commits an offence if—

(a) a relevant court makes an order under subsection (1) to give effect to an automatic forfeiture of property; and

(b) the order requires the person to do, or not do, something stated in the order; and

(c) the person has notice of the order (whether by being given a copy of the order or otherwise); and

(d) the person contravenes the order.

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

(1) Automatic forfeiture under this division ends if—

(a) the offender is cleared of the offence to which the forfeiture relates, and all related serious offences (if any); or

(b) the automatic forfeiture is fully satisfied.

Note For the meaning of fully satisfied, see dict.

(2) Automatic forfeiture is satisfied for a particular interest in forfeited property if the interest is bought back under section 126 (Buyback orders—buying interest in property).

Note After the forfeiture of property, the offender may recover the property or its value in certain circumstances (see div 9.5).

Note For general provisions about a proceeding for a conviction forfeiture order (which is a confiscation proceeding—see s 235), see pt 14.

(1) This section applies if an unclaimed tainted property restraining order is made over property.

(2) The restrained property is forfeited to the Territory at the end of 14 days after the day the restraining order comes into force, except so far as the property is excluded from forfeiture under an exclusion order.

Note 1 For the commencement of a restraining order, see Legislation Act, s 73 (4).

Note 2 The effect of an exclusion order for property subject to forfeiture is that the property is excluded from forfeiture, see s 74 (c).

(3) However, if an application for an exclusion order in relation to the property, or a part of the property, has been made (but not decided) before the end of the 14-day period, the property (or that part) is not forfeited until the proceeding in relation to the exclusion order is finalised.

Automatic forfeiture under this division ends if the automatic forfeiture is fully satisfied.

Note For the meaning of fully satisfied, see dict.

Note For general provisions about a proceeding for a conviction forfeiture order (which is a confiscation proceeding—see s 235), see pt 14.

This division does not apply to property restrained under—

(a) an artistic profits restraining order; or

(b) an unclaimed tainted property restraining order.

Note 1 An artistic profits restraining order is made solely to preserve property to satisfy a penalty order for artistic profits in relation to an offence (see s 20).

Note 2 Unclaimed tainted property is forfeitable under div 5.3.

In this Act:

civil forfeiture order means an order under section 67 (Civil forfeiture orders—making) for the forfeiture to the Territory of restrained property in relation to the commission (or the alleged commission) of a serious offence.

(1) The DPP may apply to a relevant court for a civil forfeiture order for the forfeiture to the Territory of property restrained in relation to the commission (or the alleged commission) of a serious offence.

(2) The application may be made—

(a) at the same time as, or after, an application for a restraining order in relation to the offence; or

(b) if a restraining order is in force in relation to the offence.

(1) This section applies if, on an application under section 66 for an order for the forfeiture to the Territory of restrained property, the court is satisfied on the balance of probabilities that a person (the offender) has committed a serious offence within whichever of the following periods applies (the relevant period):

(a) 6 years before the day the application to restrain the property was made;

(b) if an extended period for making the restraining order application was allowed under section 245 (Confiscation proceedings—time extensions for applications)—the total of the 6-year period and the extended period.

Note 1 The court must be satisfied on the balance of probabilities about the commission of the offence because confiscation proceedings are civil, not criminal (see s 236).

Note 2 A reference to a person generally includes a reference to a corporation as well as an individual, see Legislation Act, s 160. (See also the Legislation Act, dict, pt 1, def person.)

(2) If this section applies, the relevant court must order that the restrained property be forfeited to the Territory.

(3) The order must state—

(a) the property to which it applies; and

(b) what the relevant court considers to be the value of the property (other than money) to be forfeited to the Territory under the order at the time the order is made; and

(c) if the relevant court making the order has given a direction under section 69 (Civil forfeiture order proceedings—restrictions on disclosure)—

(i) the direction given by the court; and

(ii) the effect of section 70 (Civil forfeiture orders—disclosure offences) in relation to the direction.

(4) To remove any doubt, if the relevant court is satisfied that the offender committed a serious offence within the relevant period, the court must not refuse to make a civil forfeiture order only because it is not satisfied—

(a) that a particular serious offence was committed by the offender within the relevant period; or

(b) that the offence was committed on any particular day or time within the relevant period.

(5) Also, to remove any doubt, the relevant court must not refuse to make a civil forfeiture order in relation to a serious offence only because—

(a) an indictment has not been presented against the offender for the offence; or

(b) the offender has not been convicted of the offence; or

(c) the offender has been cleared of the offence, including being cleared after having been convicted of the offence; or

(d) a doubt is raised about whether the offender committed the offence.

(1) The property to which the civil forfeiture order applies is forfeited to the Territory at the end of 14 days after the day the order is made, except so far as the property is excluded from forfeiture under an exclusion order.

Note 1 For the commencement of a restraining order, see Legislation Act, s 73 (4).

Note 2 The effect of an exclusion order for property subject to forfeiture is that the property is excluded from forfeiture, see s 74 (c).

(2) However, if an application for an exclusion order in relation to the property, or a part of the property, has been made (but not decided) before the end of the 14-day period, the property (or that part) is not forfeited until the proceeding in relation to the exclusion order is finalised.

(1) On application by the DPP, a relevant court hearing an application for a civil forfeiture order may—

(a) direct that the hearing of the application, or part of it, take place in closed court and give directions about who may be present; and

(b) give directions prohibiting or restricting the publication or disclosure of all or any of the following:

(i) the fact that an application for the order, or that a civil forfeiture order, has been made;

(ii) the application for the order;

(iii) any information about the proceeding (whether or not a hearing has been held);

(iv) any evidence given, statement made or thing done during the proceeding;

(v) any information, document or thing derived from anything mentioned in this subsection.

1 that the application for the civil forfeiture order not be disclosed to the person against whom the civil forfeiture order is made until the court has decided an application for a restraining order against someone else’s property

2 that the supporting affidavit must be made available only to the offender’s lawyer

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) In deciding whether to give a direction under subsection (1), the court must have regard to whether the direction—

(a) would promote the purposes of this Act; or

(b) is desirable to protect the integrity of an investigation (however described) for any purpose or a prosecution of an offence.

(3) The court may also have regard to any other relevant matter in deciding whether to give a direction under subsection (1).

Note An offence against this section is a strict liability offence, see s (7).

(1) A person commits an offence if—

(a) a relevant court has given a direction under section 69 (1) (b) prohibiting or restricting the publication or disclosure of a matter mentioned in the paragraph; and

(b) the person has notice of the direction (whether by being given a copy of the civil forfeiture order to which the direction relates or otherwise); and

(c) the person publishes or discloses the matter to someone else.

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

(2) A person commits an offence if—

(a) a relevant court has given a direction under section 69 (1) (b) prohibiting or restricting the publication or disclosure of a matter mentioned in the paragraph; and

(b) the person has notice of the direction (whether by being given a copy of the civil forfeiture order to which the direction relates or otherwise); and

(c) the person publishes or discloses information to someone else; and

(d) the other person could infer from the information the matter to which the direction relates.

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

(3) Subsections (1) and (2) do not apply if the publication or disclosure is to any of the following entities in the circumstances mentioned for the entity:

(a) a police officer—in any circumstances;

(b) an officer, employee or agent of the person—to ensure that the order is complied with and the person to whom the publication or disclosure is made is given notice of the direction (whether by being given a copy of the restraining order to which the direction relates or otherwise) by the person making the publication or disclosure;

(c) a lawyer—to obtain legal advice or representation in relation to the order;

(d) a relevant court—with the court’s leave.

Note The application for leave, and any proceeding with the court’s leave, must be heard in closed court, see s (8).

(4) Also, subsections (1) and (2) do not apply if the publication or disclosure is made—

(a) by a police officer in the exercise of the officer’s functions; or

(b) for the purpose of giving or obtaining legal advice, or making legal representations, in relation to the order.

(5) A person commits an offence if—

(a) a relevant court has given a direction under section 69 (1) (b) prohibiting or restricting the publication or disclosure of a matter mentioned in the paragraph; and

(b) the person receives information in relation to the matter in accordance with subsection (3) or (4); and

(c) the person ceases to be a person mentioned in subsection (3) or (4); and

(d) the person publishes or discloses the matter to someone else.

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

(6) A person commits an offence if—

(a) a relevant court has given a direction under section 69 (1) (b) prohibiting or restricting the publication or disclosure of a matter mentioned in the paragraph; and

(b) the person receives information in relation to the matter in accordance with subsection (3) or (4); and

(c) the person ceases to be a person mentioned in subsection (3) or (4); and

(d) the person publishes or discloses information to someone else; and

(e) the other person could infer from the information the matter to which the direction relates.

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

(7) An offence against this section is a strict liability offence.

(8) For subsection (3) (d), an application for leave, and any proceeding with the court’s leave, must be heard in closed court.

(1) A civil forfeiture order ends if—

(a) the order is set aside or discharged on appeal; or

(b) the order is fully satisfied.

Note For the meaning of fully satisfied, see dict.

(2) The order is satisfied for a particular interest in forfeited property if the interest is bought back under section 126 (Buyback orders—buying interest in property).

Note After the forfeiture of property, the offender may recover the property or its value in certain circumstances (see div 9.5).

Note For general provisions about a proceeding for an exclusion order (which is a confiscation proceeding—see s 235), see pt 14.

In this Act:

exclusion order means an order under this part in relation to—

(a) restrained property (other than restrained property that has been forfeited) or property in relation to which an application for a restraining order has been made; or

(b) property in relation to which an application for a conviction forfeiture order has been made; or

(c) property subject to forfeiture under this Act.

Note 1 Property includes an interest in property, see Legislation Act, dict, pt 1.

Note 2 This part does not apply to forfeited property (see s 75 (4)). A person with an interest in forfeited property immediately before its forfeiture may apply for the return of the property or compensation for its value under a return or compensation order under div 9.5.

Note 3 Property is forfeited 14 days after a forfeiture order or an automatic forfeiture applies to the property unless an application for an exclusion order is made, see pt 5 (Forfeiture of property).

For this Act, property is subject to forfeiture if—

(a) a forfeiture order made under this Act applies to the property and the property has not been forfeited; or

(b) an automatic forfeiture under this Act applies to the property and the property has not been forfeited.

An exclusion order for property has effect as follows:

(a) for property in relation to which an application for a restraining order or conviction forfeiture order has been made—the property is excluded from restraint or forfeiture (as appropriate);

(b) for restrained property (other than restrained property that has been forfeited)—the restraining order stops applying to the property;

(c) for property subject to forfeiture—the property is excluded from forfeiture.

Note This part does not apply to forfeited property (see s 75 (4)). A person with an interest in forfeited property immediately before its forfeiture may apply for the return of the property or compensation for its value under a return or compensation order under div 9.5.

(1) This section applies to—

(a) restrained property (other than restrained property that has been forfeited) or property in relation to which an application for a restraining order has been made; or

(b) property in relation to which an application for a conviction forfeiture order has been made; or

(c) property subject to forfeiture under this Act.

Note See the notes to s 72.

(2) A person claiming an interest in the property may apply to a relevant court for an exclusion order.

(3) The application must be made—

(a) if a restraining order or conviction forfeiture order has been applied for (but not made) in relation to the property—at the same time as, or after, the application is made for the order but before the order is made; or

(b) if the property is restrained or subject to forfeiture—at any time before the property is forfeited.

(4) To remove any doubt, an application for a exclusion order cannot be made in relation to property that has been forfeited.

(1) This section applies to an application for an exclusion order for property if—

(a) a restraining order in relation to the property has been applied for in relation to an ordinary indictable offence; or

(b) the property has been restrained (but not forfeited) in relation to an ordinary indictable offence; or

(c) a conviction forfeiture order for an ordinary indictable offence has been applied for in relation to the property; or

(d) the property is subject to forfeiture in relation to an ordinary indictable offence.

(2) If the application is made by an offender, the relevant court must not make an exclusion order for the property unless the court is satisfied that the property—

(a) is not tainted property in relation to any offence against a Territory law, or a law of the Commonwealth, a State, another Territory or a foreign country; and

Note For the meaning of in relation to, see dict.

(b) is not required to be restrained to satisfy a penalty order; and

(c) does not have evidentiary value in any criminal proceeding.

(3) However, if the court is satisfied that the property is not tainted property as mentioned in subsection (2) (a), but considers that the property (or any part of the property) may be required to be restrained to satisfy a penalty order, the court must make an exclusion order declaring that the property (or part)—

(a) is not subject to forfeiture under a conviction forfeiture order; but

(b) is to remain restrained for the purpose of satisfying a penalty order.

(4) If the application is made by a person other than an offender, the court must not make an exclusion order for the property unless it is satisfied that—

(a) the applicant has an interest in the property; and

Note For the meaning of interest, see Legislation Act, dict, pt 1.

(b) the applicant was not a party to the relevant indictable offence or any related offence; and

(c) the interest is not subject to the effective control of an offender; and

Note For the meaning of effective control, see s 14.

(d) the interest is not tainted property in relation to the relevant indictable offence or any related offence; and

(e) if the interest was acquired completely or partly, or directly or indirectly, from the offender—the interest was acquired honestly and for sufficient consideration and the applicant took reasonable care to establish that the interest may be lawfully acquired by the applicant; and

(f) the property does not have evidentiary value in any criminal proceeding.

(5) An exclusion order must state the property to which it applies.

(1) This section applies to an application for an exclusion order for property if—

(a) a restraining order in relation to the property has been applied for in relation to serious offence; or

(b) the property has been restrained (but not forfeited) in relation to a serious offence; or

(c) a conviction forfeiture order for a serious offence has been applied for in relation to the property; or

(d) the property is subject to automatic forfeiture under division 5.2 (Automatic forfeiture—conviction for serious offences).

(2) If the application is made by an offender, the relevant court must not make an exclusion order for the property unless the court is satisfied that the property—

(a) was lawfully acquired by the offender; and

(b) is not tainted property in relation to any offence against a Territory law, or a law of the Commonwealth, a State, another Territory or a foreign country; and

Note For the meaning of in relation to, see dict.

(c) is not required to be restrained to satisfy a penalty order; and

(d) does not have evidentiary value in any criminal proceeding.

(3) However, if the court is satisfied that the property was lawfully acquired, and is not tainted property as mentioned in subsection (2) (b), but considers that the property (or any part of the property) may be required to be restrained to satisfy a penalty order, the court must make an exclusion order declaring that the property (or part)—

(a) is not subject to automatic forfeiture or to forfeiture under a forfeiture order; but

(b) is to remain restrained for the purpose of satisfying a penalty order.

(4) If the application is made by a person other than an offender, the court must not make an exclusion order for the property unless it is satisfied that—

(a) the applicant has an interest in the property; and

Note For the meaning of interest, see Legislation Act, dict, pt 1.

(b) the applicant was not a party to the relevant serious offence or any related offence; and

(c) the interest is not subject to the effective control of an offender; and

Note For the meaning of effective control, see s 14.

(d) the interest is not tainted property in relation to the relevant serious offence or any related offence; and

(e) if the interest was acquired completely or partly, or directly or indirectly, from the offender—the interest was acquired honestly and for sufficient consideration and the applicant took reasonable care to establish that the interest may be lawfully acquired by the applicant;

(f) the property does not have evidentiary value in any criminal proceeding.

(5) An exclusion order must state the property to which it applies.

(1) This section applies to an application for an exclusion order for unclaimed tainted property if—

(a) an unclaimed tainted property restraining order has been applied for in relation to the property; or

(b) the property has been restrained under an unclaimed tainted property restraining order (but not forfeited); or

(c) the property is subject to automatic forfeiture under division 5.3 (Automatic forfeiture—unclaimed tainted property).

(2) The court must not make an exclusion order unless the court is satisfied that—

(a) the applicant for the exclusion order has an interest in the property; and

Note For the meaning of interest, see Legislation Act, dict, pt 1.

(b) the interest was lawfully acquired by the applicant; and

(c) the interest is not tainted property in relation to any offence against a Territory law, or a law of the Commonwealth, a State, another Territory or a foreign country; and

Note For the meaning of in relation to, see dict.

(d) the interest is not required to be restrained to satisfy a penalty order; and

(e) the property does not have evidentiary value in any criminal proceeding.

(3) An exclusion order must state the property to which it applies.

In this part:

commission, of a serious offence, includes the alleged commission of the offence.

In this Act:

benefits, derived by an offender from the commission of an offence, means—

(a) tainted property, except tainted property that was used, or was intended by the offender to be used, in relation to the commission of an offence, and property derived by anyone from that property; and

(b) artistic profits allowed under section 81 (3) in relation to the offence; and

(c) any service or other advantage derived by the offender from the commission of the offence.

Mr Tres Adventuresome ran a small wholesale food business before becoming involved in illegal activity. He started to trade in gourmet foods as a cover for the commission of several offences involving the importation of cannabis into Australia. His move into the gourmet food trade could not have been achieved, and the offences could not have been committed, without key contacts (in the legitimate food trade) made by him. Because of the contacts, his legitimate business expanded considerably.

In the 12 months ending immediately before the commission of the earliest offence, Mr Adventuresome’s income from the business was $50 000. In the 12 months after then, his income from legitimate business activity (unrelated to the offences) was $200 000. This increase in activity is entirely because of continuing (legitimate) working relationships with those key contacts.

The difference of $150 000 is the value of a benefit derived from the commission of the offences by Mr Adventuresome because his relationship with the key contacts is an advantage derived by him from their commission.

Note 1 Derived includes obtained because of an understanding or a particular outcome being made known, see s 12.

Note 2 For the assessment of the value of benefits, see div 7.3.

Note 3 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(1) In this Act:

artistic profits, derived by an offender from the commission of an offence, means property, or any service or other advantage, derived from the commercial exploitation of—

(a) the notoriety of the offender, or someone else involved in the commission of the offence (another involved person), that results from the offence; or

(b) the depiction of the offence or the circumstances surrounding the offence; or

(c) an expression of the thoughts, opinions or emotions of the offender, or another involved person, about the offence.

(2) The commercial exploitation may be by any means, including, for example, in—

(a) a visual recording (for example, a film, slide, videotape, videodisc or anything else from which a visual image can be produced); or

(b) a sound recording (for example, a compact disc, tape, record or anything else from which words or sounds can produced); or

(c) printed material (for example, a book, newspaper, magazine or any other written or pictorial matter); or

(d) a radio or television production; or

(e) live entertainment of any kind (for example, a public presentation or speech).

Note  An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(3) A relevant court must allow artistic profits as benefits for section 80 (b) (Meaning of benefits derived by an offender), unless it is satisfied that it would not be in the public interest to do so.

(4) In deciding whether it would not be in the public interest to allow artistic profits as benefits, the court must have regard to the following matters:

(a) the purposes of this Act;

(b) whether the commercial exploitation has any general social or educational value;

(c) the nature and purposes of the commercial exploitation, including its use for research, educational or rehabilitation purposes;

(d) the seriousness of the offence;

(e) how long ago the offence was committed.

(5) Subsection (4) does not limit the matters to which the court may have regard.

Note For general provisions about a proceeding for a penalty order (which is a confiscation proceeding—see s 235), see pt 14.

In this Act:

penalty order means an order under this division for the payment by an offender of the value of benefits derived by an offender from the commission of an offence.

(1) The DPP may apply to a relevant court for a penalty order in relation to the commission of an indictable offence by an offender.

Note 1 Commission, of a serious offence, includes the alleged commission of the offence, see s 79.

Note 2 Indictable offence includes an offence against the law of the Commonwealth, a State or another Territory that may be dealt with under a law of the Commonwealth, the State or the other Territory as an indictable offence (see s 13 (2)).

Note 3 Offender includes a corporation, see dict.

(2) The application may be made before or after, or at the same time as, any conviction of the offender for the offence.

(3) However, if the person has been convicted of the offence, the DPP must make the application within 2 years after the day of the conviction.

Note The court may allow leave for an application to be made after the time fixed by this section in certain circumstances (see s 245).

(4) Subsection (3) does not apply to an application for an artistic profits restraining order.

(1) On application under section 83, the relevant court must make an order under this section for the payment by the offender of the value of benefits derived by the offender from the commission of an ordinary indictable offence if satisfied that—

(a) the offender has been convicted of the offence or a related ordinary indictable offence; and

(b) the offender has not been cleared of the offence of which the offender was convicted.

(2) To remove any doubt, a relevant court may make an order under this section that relates only to artistic profits.

(1) On application under section 83, the court must make an order under this section for the payment by the offender of the value of benefits derived by the offender from the commission of a serious offence if the court is satisfied on the balance of probabilities—

(a) for an application for a penalty order that relates only to artistic profits—that the offender committed a serious offence at any time; and

(b) for any other application—that the offender committed a serious offence within the relevant period.

Note 1 For the meaning of relevant period, see s (5).

Note 2 The court must be satisfied on the balance of probabilities about the commission of the offence because confiscation proceedings are civil, not criminal (see s 236).

(2) To remove any doubt, if the relevant court is satisfied that the offender committed a serious offence within the relevant period, the court must not refuse to make a penalty order only because it is not satisfied—

(a) that a particular serious offence was committed by the offender within the relevant period; or

(b) that the offence was committed on any particular day or time within the relevant period.

(3) Also, to remove any doubt, the relevant court must not refuse to make a penalty order in relation to the serious offence only because—

(a) an indictment has not been presented against the offender for the offence; or

(b) the offender has not been convicted of the offence; or

(c) the offender has been cleared of the offence, including being cleared after having been convicted of the offence; or

(d) a doubt is raised about whether the offender committed the offence.

(4) Further, to remove any doubt, the relevant court must not refuse to make a penalty order only because—

(a) a relevant court had previously made a penalty order under this section in relation to the offender for the same serious offence (or a related offence); and

(b) the order had later ended because the offender was cleared of the offence.

Note The earlier penalty order would have ended when the offender was cleared (see s 98 (a)).

(5) In this section:

relevant period means—

(a) if a restraining order is in force over any property in relation to the serious offence—

(i) 6 years before the day the application to restrain the property was made; or

(ii) if an extended period for making the restraining order application was allowed under section 245 (Confiscation proceedings—time extensions for applications)—the total of the 6-year period and the extended period; or

(b) if a restraining order is not in force over any property in relation to the serious offence—

(i) 6 years before the day the application for the penalty order was made; or

(ii) if an extended period for making the penalty order application was allowed under section 245—the total of the 6-year period and the extended period.

(1) In making a penalty order in relation to an offence, the court must—

(a) assess under division 7.3 (Value of benefits) the value of any benefits (the assessed value) derived by the offender from the commission of the offence and any related offence; and

(b) order the offender to pay the Territory the amount worked out under subsection (2).

(2) The amount payable under the penalty order is the assessed value less any amount by which the assessed value is reduced under subsection (3).

(3) The assessed value in relation to the offence or any related offence may be reduced if the court is satisfied that it is just and equitable that the assessed value should be reduced by any of the following amounts:

(a) the value of property subject to forfeiture under this Act or a corresponding law;

Note For the meaning of subject to forfeiture, see s 73.

(b) the value of property forfeited under this Act or a corresponding law;

(c) the amount of any other penalty order, or any other financial penalty (however described) under a corresponding law;

(d) any amount payable by the offender under a reparation order under the Crimes Act 1900, section 350, or any corresponding order made under the law of the Commonwealth, a State or another Territory;

(e) any amount payable by the offender for restitution, compensation or damages, other than any fine imposed by a court;

(f) any amount of tax payable under a law of the Territory, the Commonwealth, a State, another Territory or a foreign country in relation to the benefits.

(1) A penalty order must state—

(a) the amount of the penalty payable under the order; and

(b) the person by whom the penalty is payable.

(2) A failure by a relevant court to comply with this section does not invalidate the penalty order or any action by anyone to satisfy the penalty order.

The amount ordered to be paid by a relevant court under a penalty order is a judgment debt owing to the Territory.

Note Any restrained property is automatically charged with the amount of the penalty order, and may be sold to satisfy the order (see div 7.4).

On application by the person by whom the penalty under a penalty order is payable or the DPP, a relevant court may make an order varying the order to reflect the value of the relevant benefits as reassessed at the time the varying order is made.

1 The amount of the penalty order is reduced by the value of forfeited property (see s 86 (3) (b)). The order for the forfeiture is overturned by a court in a later proceeding. The relevant court may vary the penalty order to increase the amount of the penalty order by the value of the forfeited property.

2 The amount of the penalty order is reduced by an amount of tax payable by the offender in relation to a benefit (see s 86 (3) (f)). The amount of tax is reduced on a review by the commissioner of taxation. The relevant court may vary the penalty order to increase the amount of the penalty order by the reduced amount of tax.

3 If, in example 2, the amount of the tax payable had been increased on review, the court may vary the penalty order to reduce the amount of the penalty order by the amount of the increased tax.

Note  An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

In this division:

narcotic substance—see the Customs Act 1901 (Cwlth), section 4, and includes anything prescribed under the regulations for this definition.

property, of an offender, includes—

(a) property subject to the effective control of the offender; and

(b) property that, immediately before it vested in the trustee for the property under the Bankruptcy Act 1966 (Cwlth), was the offender’s property.

Note For the meaning of effective control, see s 14.

(1) This section applies to the assessment of the value of benefits derived by an offender from the commission of an ordinary indictable offence (or ordinary indictable offences).

(2) The value of the benefits derived by the offender from the commission of the offence (or offences) is—

(a) if evidence is given about any increase in value of the offender’s property since immediately before the offence (or the earliest offence) was committed—taken to be not less than the amount of the greatest increase in value of which evidence is given; and

(b) in any case—taken to include the value of any narcotic substance to which the offence (or offences) relates.

An offender has committed an ordinary indictable offence. Just before beginning to commit the offence, the value of the offender’s property was $50 000. Two months after the offence began to be committed, the value of the offender’s property was $150 000. At the time of the application for the penalty order, however, the offender’s property was only worth $75 000.

The ‘greatest increase’ in the total value of the offender’s property since immediately before the offence was committed is $100 000 ($150 000 minus $50 000).

Note 1 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

Note 2 For the valuation of narcotic substances, see s 93 (3) and (4).

(3) However, the value of the benefits is taken not to include any part (or all) of the increase in value if the offender satisfies the court that the part (or all) of the increase was from either—

(a) property that—

(i) was lawfully acquired by the offender; and

(ii) is not tainted property in relation to any offence against a Territory law, or a law of the Commonwealth, a State, another Territory or a foreign country; or

(b) benefits that were lawfully acquired by the offender.

Note For the meaning of in relation to, see dict.

(4) This section does not apply in relation to a penalty order relating only to artistic profits.

(1) This section applies to the assessment of the value of benefits derived by an offender from the commission of a serious offence (or serious offences).

Note Commission, of a serious offence, includes the alleged commission of the offence, see s 79.

(2) The value of the benefits derived from the offence (or offences) is taken to include the following:

(a) the value of all of the offender’s property on the day the application was made;

(b) the value of any other property held by the offender within the shorter of the following periods:

(i) between the day the offence (or the earliest offence) was committed and the day the application was made;

(ii) 6 years immediately before the day the application was made;

(c) the value of any narcotic substance to which the offence (or offences) relate;

Note For the valuation of narcotic substances, see s 93 (3) and (4).

(d) all of the person’s expenditure during the relevant period under paragraph (b) (other than expenditure to the extent that it resulted in the acquisition of property mentioned in paragraph (a) or (b)).

(3) However, subsection (2) does not apply to particular property if the offender satisfies the court that the property—

(a) was lawfully acquired by the offender; and

(b) is not tainted property in relation to any offence against a Territory law, or a law of the Commonwealth, a State, another Territory or a foreign country.

Note For the meaning of in relation to, see dict.

(4) Also, subsection (2) does not apply to particular expenditure if the offender satisfies the court that the expenditure—

(a) was derived from property or benefits lawfully acquired by the offender; and

(b) the property from which the expenditure was derived is not tainted property in relation to any offence against a Territory law, or a law of the Commonwealth, a State, another Territory or a foreign country.

(5) For subsection (2) (b) (i), if a serious offence was committed over more than 1 day, the reference in the subparagraph to the day the offence was committed is a reference to the day the offence was begun to be committed.

(6) This section does not apply in relation to a penalty order relating only to artistic profits.

(1) In assessing the value of a benefit derived from the commission of an offence and any related offences, the relevant court may have regard to any relevant matters.

1 an increase in the income or profits of the offender in comparable periods before and after the offence was committed (see s 80, example for par (c))

2 an increase in the value of property held by the offender because of the benefit, taking into account any relevant variation in the purchasing power of money

3 the value of the offender’s property before, during and after the commission of the offence

4 the income and expenditure of the offender before, during and after the commission of the offence

5 the part of the benefit derived from the commission of the offence and the part derived from other sources

Note  An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) The court must assess the value of a benefit by reference to the highest value the benefit has had since the commission of the offence or a related offence, unless the court is satisfied that the benefit should be valued differently having regard to the purposes of this Act.

1 An offender derives a benefit worth $10 000 from the commission of an offence. If the benefit had been derived at the time of valuation for a penalty order proceeding 2 years later, the benefit would have been worth $11 000 (because of inflation). The court may assess the value of the benefit as $11 000 rather than $10 000.

2 The offence to which benefits relate is an ordinary indictable offence. However, the offender later committed a related offence that was a serious offence. The court may have regard to the highest value of the benefits since the commission of the ordinary indictable offence.

(3) At the hearing of an application for a penalty order, a law enforcement officer who is experienced in the investigation of narcotic offences may testify, to the best of the officer’s information, knowledge and belief—

(a) in relation to the amount that was the market value of a narcotic substance at a particular time or during a particular period; or

(b) in relation to the amount, or the range of amounts, ordinarily paid at a particular time or during a particular period, for the doing of anything in relation to a narcotic substance.

(4) The law enforcement officer’s testimony under subsection (3)—

(a) is admissible at the hearing despite any rule of law or practice about hearsay evidence; and

(b) is prima facie evidence of the matters testified.

(5) In this section:

law enforcement officer means—

(a) a police officer; or

(b) an officer of Customs under the Customs Act 1901 (Cwlth).

(1) This section applies if, in relation to an offence—

(a) a restraining order is made; and

(b) a penalty order is made.

(2) On the making of the later of the orders, all of the restrained property is automatically charged to secure the payment to the Territory of the amount of the penalty order.

Note 1 An interstate penalty charge is taken to be a penalty charge under this Act (see s 138).

Note If the penalty charge is over restrained property that may be recorded in a statutory property register, details of the restraining order may be recorded in the register under s 50.

(3) If the restraining order is varied after the penalty order is made to add more property, the additional property is also automatically charged to secure payment to the Territory of the amount of the penalty order.

(4) A charge on property created by this section (a penalty charge)—

(a) is subject to every encumbrance on the property that came into existence before the charge and that would have priority over the charge if this subsection had not been enacted; and

(b) has priority over all other encumbrances; and

(c) is not affected by any change in the ownership of the property unless the change in ownership ends the penalty charge under section 95 (c) or (d).

A penalty charge over property ends when the earliest of the following events happens:

(a) the penalty order for which the charge was created ends;

Note For when a penalty order ends, see s 98. See also the example to this section.

(b) the restraining order over the property ends;

Note For when restraining orders end, see div 4.3. See also the example to this section.

(c) the property is sold, or otherwise disposed of, with the consent of—

(i) the relevant court that made the penalty order; or

(ii) if a trustee (including the public trustee) controls the property—the trustee;

(d) the property is sold to a purchaser who—

(i) buys the property honestly and for sufficient consideration; and

(ii) at the time of the purchase, has no notice of the charge.

If a penalty order is made in relation to an ordinary indictable offence of which the offender was convicted, both the restraining order and the penalty order end if the conviction is later quashed (see s 47 and s 98).

Note 1 If the restraining order over the charged property is registered in a statutory property register, anyone who buys the property is taken to have notice of the charge (see s 50 (3)).

Note 2 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(1) A penalty order in relation to an offence authorises the public trustee to satisfy the order out of any property restrained for the offence (including any property that becomes restrained after the order is made).

Note 1 The penalty order may also be enforced as a judgment debt (see s 88).

Note 2 An amount received by the public trustee to satisfy the penalty order must be paid into the confiscated assets trust fund, see s 130.

Note 3 An interstate penalty charge is taken to be a penalty charge under this Act (see s 138).

(2) To satisfy the penalty order, the public trustee may sell or otherwise dispose of restrained property that is not money in any way the public trustee considers appropriate.

Note The money realised by the public trustee from the disposal of property must be paid into the be paid into the confiscated assets trust fund, see s 130 and dict, def fully satisfied, par (b).

(3) However, the public trustee must not sell or otherwise dispose of restrained property to satisfy the order until—

(a) all confiscation proceedings (including forfeiture proceedings) in relation to the property have been finalised; and

(b) all proceedings in relation to the offender’s conviction for the offence are finalised.

Note 1 For the meaning of confiscation proceedings, see s 235.

Note 2 For when confiscation and criminal proceedings are finalised, see s 18.

Note 3 If the offender is acquitted on appeal, the restraining order will end, and the penalty charge ends under s 95.

(4) The penalty order also authorises the public trustee or anyone else named in the order (an authorised agent) to sign any instrument necessary or convenient for the disposal of restrained property.

(5) An instrument signed by an authorised agent has the same effect as if it were signed by the person who owned the property before it was disposed of.

If the amounts paid into the trust fund to satisfy a penalty order are more than is required to fully satisfy the order, the public trustee must pay the surplus amount to the person against whom the order was made.

A penalty order ends if—

(a) for a penalty order made under section 84 (Penalty orders—offenders convicted of ordinary indictable offences)—the offender is cleared of the offence (or offences) to which the penalty order relates, and all related offences (if any); or

(b) the order is reversed or set aside on appeal; or

(c) the order is fully satisfied.

Note 1 For the meaning of fully satisfied, see dict.

Note 2 If the order ends because it was made because of the conviction of the offender for a serious offence, and the offender is cleared, a further penalty order may be made against the offender (see s 85 (4)).

This division applies if the public trustee takes control of restrained property under an order under this Act.

Note A registered interstate restraining order is taken to be a restraining order under this Act (see s 138).

Note 2 A provision of a law that gives an entity (including a person) a function also gives the entity powers necessary and convenient to exercise the function (see Legislation Act, s 196 and dict, pt 1, def entity).

(1) The public trustee may do anything necessary or desirable to preserve the value of the restrained property.

1 bring or defend any civil proceeding affecting the property

2 insure the property

3 if the property consists (completely or partly) of securities or investments, realise or otherwise deal with the securities or investments

4 if the property is related to a business—

(a) employ, or end the employment of, people in the business; and

(b) do anything else that is necessary or convenient for carrying on the business on a sound commercial basis

5 if the property consists, completely or partly, of shares in a corporation, exercise (to the exclusion of the registered proprietor) the rights attaching to the shares as if the public trustee were the registered holder

Note 1 Related powers of the public trustee include making an application to a relevant court for an order about the restrained property (see s 39) and the registration of title to, or charges over, registrable property (see s 50).

Note 2 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) The owner of restrained property commits an offence if—

(a) the public trustee asks the owner for the person’s tax file number within a stated reasonable time; and

(b) the owner fails to give the pubic trustee the person’s tax file number within that time.

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

(3) An offence against this section is a strict liability offence.

(1) The public trustee may sell restrained property if—

(a) the property is deteriorating or substantially losing value or the public trustee considers that the property is likely to deteriorate or substantially lose value; or

(b) the public trustee considers that the cost of maintaining the property would be more than the value of the property if the property were forfeited.

(2) The restraining order that applied to restrained property sold under this section applies to the proceeds of the sale of the property.

(3) The public trustee may modify or destroy restrained property if the public trustee considers it is necessary to do so in the public interest.

1 the restrained property cannot be used legally or the only practical use of the property is for an illegal purpose

2 the restrained property is a threat to public health or safety

Note  An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(1) The public trustee must give written notice of a proposed sale, modification or destruction of restrained property under section 101 (the proposed action) to—

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

(b) anyone else the public trustee believes may have an interest in the property.

Note 1 For how documents may be given, see Legislation Act, pt 19.5.

Note 2 For the emergency modification or destruction of restrained property, see s 103.

(2) The notice must state—

(a) the proposed action and the property to which it applies; and

(b) the date when the proposed action is to be taken (the date of effect); and

(c) that the proposed action may be taken on or after the date of effect unless a relevant court orders the public trustee not to take the proposed action.

(3) The notice may, but need not, provide an opportunity for the person to make representations why the proposed action should not be taken.

(4) The date of effect must not be earlier than 21 days after the day the notice is given to the person.

Note For the power to give a reduced period of notice, see s 103.

(5) The public trustee must not take the proposed action before the date of effect.

Note For the power not to give notice of the modification or destruction of property, see s 103.

(1) This section applies if the public trustee considers that restrained property is a serious threat to public health or safety.

(2) Despite section 102, the public trustee may—

(a) give notice to a person under that section with a date of effect less than 21 days after the day the notice is given to the person; or

(b) modify or destroy the property without giving notice under that section.

(3) If the public trustee modifies or destroys the property under subsection (2) (b), the public trustee must, as soon as practicable, give notice of the action taken, and the grounds for the action, to—

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

(b) anyone else the public trustee believes may have an interest in the property.

(1) A person may apply to a relevant court for an order stopping the public trustee from selling, modifying or disposing of restrained property under this division.

(2) If the person was not given notice of the proposed action by the public trustee, the person may make the application only with the leave of the relevant court and if the person satisfies the court that the person has an interest in the property.

Note For general provisions about a proceeding for an order under this section (which is a confiscation proceeding—see s 235), see pt 14.

(3) On an application under this section, the court may make any order about the sale, modification or destruction of the property it considers appropriate.

(1) This section applies to property that is jointly owned if any of the owners die while the property (including any interest in the property) is subject to a restraining order.

Note A registered interstate restraining order is taken to be a restraining order under this Act (see s 138).

(2) If the property was held by the dead person as a joint tenant, the person’s death does not vest the person’s interest in the property in the surviving joint owner.

(3) If the property was held by the dead person as a tenant in common, the dead person’s interest must not be transferred to anyone else because of the person’s death.

The dead person’s interest must not be transferred to an executor or administrator, or to a beneficiary under the dead person’s will or under intestacy.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(4) The restraining order continues to apply to the property as if the person had not died.

(5) An automatic forfeiture of any interest of the dead person in the property, or a forfeiture order made in relation to the interest, applies as if the interest were forfeited immediately before the person died.

Note 1 A registered interstate automatic forfeiture decision is taken to be an automatic forfeiture under this Act (see s 138).

Note 2 A registered interstate forfeiture order is taken to be a forfeiture order under this Act (see s 138).

(6) If the restraining order stops applying to the property without it being forfeited under this Act, this section is taken not to have applied to the property.

In this part:

interested person, in relation to property, means—

(a) a person who has an interest in the property; or

(b) the DPP; or

(c) if a trustee (including the public trustee) controls the property—the trustee; or

(d) if the property has been forfeited—a person who had an interest in the property immediately before it was forfeited.

(1) The public trustee may take any steps that are necessary or desirable to vest forfeited property in the Territory and to bring it under the public trustee’s control.

1 the giving notice of, or otherwise taking action to protect, the Territory’s equitable interest in forfeited property

2 registering a caveat over forfeited property

3 obtaining registration of an interest in forfeited property on behalf of the Territory (including signing an instrument of transfer)

Note  An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) This section does not limit the powers of the public trustee under this Act in relation to the forfeited property.

the public trustee may transfer an interest in property on behalf of the Territory

Note A registered interstate forfeiture order is taken to be a forfeiture order under this Act (see s 138).

On forfeiture, the forfeited property vests absolutely in the Territory.

Note 1 Property includes an interest in property, see Legislation Act, dict, pt 1.

Note 2 If a joint owner of restrained property dies, and the property is later forfeited, the forfeiture takes effect as if the property had been forfeited immediately before death (see s 105).

(1) This section applies despite section 108, if the forfeited property is, or is an interest in, registrable property.

(2) On forfeiture, the property or the interest vests in equity in the Territory, but does not vest at law in the Territory until the applicable registration requirements for the property or the interest have been complied with.

All of a person’s property, except a mortgage over the person’s house, is restrained before the person’s conviction for a serious offence. All the restrained property is forfeited 14 days after the person’s conviction. The mortgagee’s interest is not forfeited because it was not restrained. However, all other registrable interests in the house are forfeited and vest in the Territory in equity. On registration of the interests under the Land Titles Act 1925, the interests vest in law in the Territory.

Note 1 For the power of a relevant court to order the sale of property owned by more than 1 person, see div 9.4.

Note 2 Non-registrable property vests ‘at law’ in the Territory on forfeiture, because it vests ‘absolutely’ under s 108. Registrable property vests ‘at law’ in the Territory when it is registered in the name of the Territory under this section.

Note 3 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(3) The Territory is entitled to be registered as the owner of the property or the interest.

(4) The registration of the Territory as the owner of the property is taken not to be a contravention of a direction under section 110 (3) in relation to the property.

Note If a joint owner of restrained property dies, and the property is later forfeited, the forfeiture takes effect as if the property had been forfeited immediately before death (see s 105).

(5) To remove any doubt, if property is divisible into 2 or more interests and not all the interests in the property are forfeited, the other interest or interests are not ended only because of the forfeiture of another interest in the property.

(1) If forfeited property is money, the public trustee must pay the money into the trust fund.

(2) The public trustee must sell or otherwise dispose of forfeited property (other than money) as soon as practicable after—

(a) the end of 14 days after the day the property was forfeited; and

(b) the property has vested at law in the Territory; and

(c) the public trustee has control of the property; and

(d) if applicable—the end of 14 days after all confiscation proceedings in relation to the property have been finalised.

Note 1  A restraining order stops applying to property when the property vests in law in the Territory and the public trustee takes control of the property (see s 45 (1) (b)).

Note 2  The 14-day periods reflect the application periods for return or compensation orders under div 9.5 and buy-back orders under div 9.6.

Note 3 For the sale of jointly owned property, see s 115.

(3) However, the Minister may, after all confiscation proceedings in relation to forfeited property are finalised and before the public trustee deals with the property under subsection (1) or (2), direct that the property be dealt with in accordance with the direction (including in accordance with a law stated in the direction).

(4) The public trustee must comply with the Minister’s direction.

(5) Also, if the DPP tells the public trustee that forfeited property has evidentiary value in a criminal proceeding, the property must not be sold or otherwise disposed of before the criminal proceeding is finalised, other than—

(a) for the purpose of vesting the property at law in the Territory or allowing the public trustee to take control of the property; or

(b) in accordance with a written direction of the DPP.

Note For general provisions about a proceeding for an order under this section (which is a confiscation proceeding—see s 235), see pt 14.

This division applies to forfeited property if—

(a) the property has vested in law in the Territory after a registered property interest in the property was created; or

(b) if the property was jointly owned immediately before forfeiture—the property has vested in trustees for sale under section 116 after the interest was created.

Note If a joint owner of restrained property dies, and the property is later forfeited, the forfeiture takes effect as if the property had been forfeited immediately before death (see s 105).

(1) An interested person may apply to a relevant court for an order discharging a registered property interest to which forfeited property is subject.

(2) The court must order the discharge of the registered property interest unless satisfied that—

(a) the interest was acquired honestly and for sufficient consideration and the person took reasonable care to establish that the interest could be lawfully acquired by the person; and

(b) for a registered property interest that was acquired otherwise than in the ordinary course of business—

(i) the owner of the registered property interest was not a party to the offence (or a related offence) in relation to which the forfeiture was made; and

(ii) the property is not subject to the effective control of the person who committed the offence (or a related offence) in relation to which the forfeiture was made.

Note For the meaning of effective control, see s 14.

(3) On application by an interested person, a person responsible for a statutory property register must make the entries in the register that are necessary or desirable to give effect to the court order.

Note For general provisions about proceedings for orders under this division (which are confiscation proceedings—see s 235), see pt 14.

(1) This division applies to jointly owned property if the property, or an interest in the property, is forfeited under this Act.

Note 1 A registered interstate automatic forfeiture decision is taken to be an automatic forfeiture under this Act (see s 138).

Note 2 A registered interstate forfeiture order is taken to be a forfeiture order under this Act (see s 138).

(2) However, this division does not affect any right of a person to sell an interest in the property that has not been forfeited if the property is not subject to an order under this division.

(1) This section applies if there is an inconsistency between—

(a) this division or a court order under this division; and

(b) the Trustee Act 1925 or the Conveyancing Act 1919, division 4.5 (Dispositions on trust for sale or with power of sale).

(2) If this section applies, this division or the court order overrides the legislation mentioned in subsection (1) (b), to the extent of the inconsistency.

(1) An interested person may apply to a relevant court for an order for the sale under a trust for sale of jointly owned property to which this division applies.

Note A trust for sale allows property to be sold over the objections of a person.

(2) The court may order the sale of the property under a trust for sale if satisfied that the sale of the property—

(a) is the most practical way of ensuring a reasonable price for the property or a joint owner’s interest in the property; or

(b) is just and equitable in all the circumstances.

(3) The court may give the trustees any directions about the property, its sale and the proceeds of the sale that the court considers appropriate.

1 a direction that the trustees obtain a valuation of the property from a qualified valuer before the sale

2 a direction that the property must only be sold by auction

3 a direction fixing the reserve price for the sale of the property at auction

4 if a joint owner is allowed to buy the property, a direction that the joint owner may set off against the purchase price any share of that person in the proceeds of the sale

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(4) A joint owner of the property may buy the property only if a direction of the court allows the person to buy the property.

(5) On application by the purchaser of the property, a person responsible for a statutory property register must make the entries in the register that are necessary or desirable to give effect to the sale of the property in accordance with the court order (and any directions of the court).

(1) If a relevant court makes an order for the sale of property under a trust for sale, the court must appoint trustees for the sale.

(2) The trustees hold the property under a trust for sale to sell the property and, after payment of the costs and expenses of the sale and of any outgoings in relation to the property, to pay the proceeds of the sale and any income from the property to the court.

(3) The property vests in the trustees on their appointment.

(4) The property vests in the trustees subject to any registered property interests that apply to all of the property, other than an undivided share of the property.

The joint ownership of the property ends on the vesting of the property in the trustees.

(1) The amount paid to a relevant court under section 116 (2) is payable to the Territory.

(2) However, the court may order the payment of part or all of the amount to a person (an innocent joint owner) who was a joint owner of the property immediately before it was sold under this division if—

(a) the innocent joint owner was not a party to the offence (or a related offence) in relation to which the forfeiture was made; and

(b) the innocent joint owner’s interest is not subject to the effective control of a person who committed the offence (or a related offence) (an offender) in relation to which the forfeiture was made; and

Note For the meaning of effective control, see s 14.

(c) for property acquired completely or partly, or directly or indirectly, from an offender—the property was acquired honestly and for sufficient consideration and the innocent joint owner took reasonable care to establish that the property could be lawfully acquired by the innocent joint owner.

(3) For subsection (2), the court may have regard to any matter it considers appropriate, including the relationship between the offender and the innocent joint owner.

On application by the trustees for sale or an interested person, a relevant court may vary an order it has made for the sale of property under a trust for sale (or make or vary any directions about the property, its sale or the proceeds of sale).

Note For general provisions about a proceeding for a return or compensation order (which is a confiscation proceeding—see s 235), see pt 14.

In this Act:

return or compensation order means an order under section 122 (Return or compensation orders—making) that an interest in forfeited property be returned to the person who held the interest immediately before its forfeiture, or that the Territory pay to the person the value of the interest.

(1) A person who held an interest in forfeited property immediately before its forfeiture may apply to a relevant court for a return or compensation order in relation to the interest.

(2) The application may be made only if 1 of the following events happens (a qualifying event):

(a) if the interest was forfeited under a forfeiture order or automatic forfeiture—the person is cleared of the offence (and any related offences) to which the forfeiture related;

Note For the meaning of cleared, see s 17.

(b) if the interest was forfeited under a forfeiture order—the proceeding in relation to the order is finalised and the order is overturned on appeal.

Note For the meaning of finalised, see s 18.

(3) The application must be made within 14 days after—

(a) the day the qualifying event happens; or

(b) if the person only became aware of the qualifying event at a later time, and the delay in becoming aware of the event was not because of the person’s neglect—the day the person became aware of the qualifying event.

Note The court may allow leave for an application to be made after a time fixed by this section in certain circumstances (see s 245).

(1) On application under section 121, if satisfied that a qualifying event mentioned in section 121 (2) has happened in relation to a forfeited interest, the court may order—

(a) that the forfeited interest be returned to the person who held the interest immediately before its forfeiture; or

(b) that the Territory pay the person the value of the interest.

(2) In making the order, the court must—

(a) declare the extent, nature and value of the person’s interest in the forfeited property; and

(b) order that—

(i) if the interest is still vested in the Territory—the Territory transfer the interest to the person; or

(ii) in any other case—the public trustee pay the person the value declared under paragraph (a).

Note For general provisions about a proceeding for a buyback order (which is a confiscation proceeding—see s 235), see pt 14.

In this Act:

buyback order means an order under section 125 (Buyback orders—making) declaring that a person may buy an interest in forfeited property from the Territory.

(1) A person who held an interest in forfeited property immediately before its forfeiture may apply to a relevant court for a buyback order in relation to—

(a) that interest; or

(b) any other interest in the forfeited property; or

(c) all interests in the forfeited property.

(2) The application must be made within 14 days after—

(a) the day the interest formerly held by the person was forfeited; or

(b) if the person only became aware of the forfeiture at a later time, and the delay in becoming aware of the forfeiture was not because of the person’s neglect—the day the person became aware of the forfeiture.

Note The court may allow leave for an application to be made after a time fixed by this section in certain circumstances (see s 245).

(1) On application under section 124, the court may, by order, declare that a person may buy an interest in forfeited property from the Territory if it is satisfied that—

(a) the interest is still vested in the Territory; and

(b) it would not be contrary to the public interest (including for the purposes of this Act) to do so; and

(c) if the order applied for is in relation to an interest other than the interest formerly held by the person—no-one else who held an interest in the forfeited property immediately before forfeiture objects to the making of the order.

Note The applicant must give notice of the application to anyone else the applicant knows to have had an interest in the property immediately before forfeiture (see s 243).

(2) In making the order, the court must declare—

(a) the extent, nature and value of the interest in the forfeited property that is to be bought from the Territory; and

(b) that the interest may be bought from the Territory for the value declared under paragraph (a) within 1 month after the day the order is made.

If a buyback order is made, and the applicant for the order pays to the public trustee the value declared under section 125 (2) (a) within 1 month after the day the order is made, the Territory must transfer the interest to the applicant.

In this part:

distributable funds means money in the trust fund that is—

(a) designated as distributable funds under the regulations; or

(b) declared under section 134 (4) (Review of reserved and distributable funds by public trustee) to be distributable funds.

equitable sharing program—see section 128.

reserved funds means money in the trust fund that is—

(a) designated as reserved funds under the regulations; or

(b) declared under section 134 (2) to be reserved funds.

(1) In this part:

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

(a) the Territory shares with the Commonwealth or a State a proportion of any proceeds of an unlawful activity recovered under a Territory law (including this Act), if, in the Minister’s opinion, the Commonwealth or that State has made a significant contribution to the recovery of the proceeds or to the investigation or prosecution of the unlawful activity;

(b) the Commonwealth or a State shares with the Territory a proportion of any proceeds of an unlawful activity recovered under a law of the Commonwealth or that State, if, in the opinion of the appropriate Minister of the Commonwealth or that State, the Territory has made a significant contribution to the recovery of the proceeds;

(c) the Territory shares with a foreign country a proportion of the proceeds of any unlawful activity recovered under a Territory law, if, in the Minister’s opinion, the foreign country has made a significant contribution to the recovery of the proceeds or to the investigation or prosecution of the unlawful activity.

(2) In subsection (1):

unlawful activity means an act or omission that is—

(a) an indictable offence; or

(b) an offence against a law of a foreign country.

Note Indictable offence includes an offence against the law of the Commonwealth, a State or another Territory that may be dealt with under a law of the Commonwealth, the State or the other Territory as an indictable offence (see s 13 (2)).

There is to be a trust fund called the confiscated assets trust fund.

(1) The following amounts must be paid into the trust fund:

(a) the income from the administration of restrained property;

(b) the forfeited money mentioned in section 110 (1) (Disposal of forfeited property) and the Crimes Act 1900, section 386B (1) (Disposal of forfeited money or goods by the public trustee);

(c) income earned from forfeited property (including income from the administration of the property);

(d) amounts raised from the sale of property to satisfy penalty orders, including any income earned from those amounts;

(e) payments for forfeited property that is bought back under a buyback order;

(f) the remainder of the proceeds mentioned in the Crimes Act 1900, section 250 (2) (b) (Disposal of forfeited articles by public trustee) and section 386B (3) (b);

(g) the proceeds of the enforcement of registered interstate automatic forfeiture decisions and registered interstate forfeiture orders;

(h) payments and the proceeds of property sold to satisfy an interstate penalty orders;

(i) payments received under the equitable sharing program.

(2) However, this section does not apply in relation to forfeited property to which a direction under section 110 (3) (Disposal of forfeited property) applies.

(3) Amounts paid into the trust fund must be designated as reserved funds or distributable funds in accordance with the regulations (if any).

(4) All amounts payable into the trust fund must be paid into a trust banking account maintained under the Financial Management Act 1996, section 51 (Departmental trust banking accounts).

(1) The trust fund may be used to make payments from reserved funds for the following purposes:

(a) payments under return or compensation orders;

(b) payments of compensation under the Crimes Act 1900, section 386C (Return or compensation for forfeited money or goods);

(c) if property in the possession or control of the public trustee is returned, or compensation paid for property that has been under the control of the public trustee, under a return or compensation order—any costs, charges or expenses deducted by the public trustee in relation to the property;

(d) the annual management fee prescribed under the regulations for the public trustee;

(e) other costs, charges or expenses of the public trustee in relation to the exercise of functions under this Act;

(f) payments under the equitable sharing program.

(2) The trust fund may be used to make payments from distributable funds in accordance with section 133 (2) (Distribution of surplus funds).

(1) Payments must be made in accordance with the principle that payments for a purpose for which reserved funds may be used have priority over payments for purposes for which distributable funds may be used.

(2) The public trustee may make payments for the purposes of the trust fund.

(3) However, a payment under the equitable sharing program or from distributable funds may be made only in accordance with a written direction of the Minister.

(1) For section 131 (2) (Purposes of trust fund), the Minister must, at least once in each financial year, decide the amount of distributable funds available for payment from the trust fund.

(2) The Minister may approve the use of part or all of the decided amount for any of the following purposes:

(a) the enforcement of Territory laws;

(b) criminal justice activities;

(c) crime prevention;

(d) assistance to victims of crime;

(e) the prevention of drug abuse;

(f) the rehabilitation of drug users;

(g) a purpose prescribed under the regulations relating to law enforcement or drug rehabilitation and education.

(3) An approval is a notifiable instrument.

Note  A notifiable instrument must be notified under the Legislation Act.

(1) The public trustee must review the trust fund at least twice each year to decide whether the amount of reserved funds is likely to be sufficient to meet the payments from reserved funds that may be made within the 6 month period after the review.

(2) If the public trustee considers that the amount of reserved funds is likely to be insufficient, the public trustee must declare, in writing, an amount of distributable funds to be reserved funds.

(3) The amount declared must not be more than is necessary to increase the amount of reserved funds to what is required to meet payments from reserved funds within the 6 months after the declaration is made.

(4) If the public trustee considers that the amount of reserved funds is likely to be more than is necessary, the public trustee must declare, in writing, the amount of the surplus funds to be distributable funds.

Note Proceedings under this part are civil, not criminal (see s 236 (1) (b)).

In this part:

authenticated, in relation to a corresponding law order, means authenticated by the entity that made the order in accordance with the corresponding law under which the order was made or the practice of the entity.

if the entity is a court, the order may be authenticated by the court’s seal or stamp

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(1) This section applies if—

(a) an interstate restraining order expressly applies to—

(i) stated property in the ACT; or

(ii) all the property in the ACT of a person; or

(iii) all the property (other than stated property) in the ACT of a person; or

(b) an interstate automatic forfeiture decision expressly applies to property in the ACT; or

(c) an interstate forfeiture order expressly applies to property in the ACT.

(2) An authenticated copy of the order or decision may be registered in a relevant court by the applicant for the order or decision, the DPP or a person prescribed under the regulations.

(3) An authenticated copy of any amendment of the order or decision (made before or after the registration of the order or decision) may be registered in a relevant court by a person mentioned in subsection (2).

(4) Registration of the order or decision, and any amendment of the order or decision, may be refused to the extent that the order or decision, or the order or decision as amended, could not, on registration, be enforced in the ACT.

(5) The order or decision, and any amendment of the order or decision, must be registered in accordance with the procedure of the relevant court.

(1) This section applies to an electronic copy of an authenticated interstate restraining order, interstate automatic forfeiture decision or interstate forfeiture order or of an authenticated copy of any amendment of such an order or decision.

(2) If the electronic copy is certified in accordance with the procedure of a relevant court, it is taken, for this Act, to be an authenticated copy of the order, decision or amendment.

(3) However, if the order, decision or amendment is registered in the relevant court using the electronic copy, the registration ceases to have effect at the end of 5 days after the day of registration, or when an authenticated copy of the order, decision or amendment is registered, whichever happens first.

(4) In this section:

electronic copy, of a document, includes the following copies of the document:

(a) a fax copy;

(b) an emailed copy;

(c) a scanned copy.

(1) For this Act, a registered interstate restraining order is taken to be a restraining order under this Act.

(2) For this Act, a registered interstate automatic forfeiture decision is taken to be an automatic forfeiture under division 5.2 (Automatic forfeiture—conviction for serious offences).

(3) For this Act, a registered interstate civil forfeiture order is taken to be a civil forfeiture order under this Act.

(4) For this Act, a registered interstate conviction forfeiture order is taken to be a conviction forfeiture order under this Act.

(5) An amendment of a registered interstate order or decision mentioned in this section has effect for this Act only if it is registered under this part.

A registered interstate restraining order, automatic forfeiture decision or forfeiture order ceases to be registered under this Act if—

(a) it ceases to be in force under the corresponding law under which it was made; or

(b) its registration is cancelled under section 140.

(1) The registration of an interstate restraining order, interstate automatic forfeiture decision or interstate forfeiture order may be cancelled by a relevant court, or an officer of a relevant court prescribed under the regulations, if—

(a) the registration was improperly obtained; or

(b) details of any amendment of the order or decision, or any direction of the entity that made the order or decision, was not given to the relevant court in accordance with the procedure of the court.

(2) The registration of an interstate restraining order, interstate automatic forfeiture decision or interstate forfeiture order, or an amendment of such an order or decision, may be cancelled by a relevant court, to the extent that the order or decision, or the order or decision as amended, cannot be enforced in the ACT.

(1) This section applies if—

(a) an interstate restraining order is made because of the commission, or the alleged commission, of an indictable offence by a person; and

(b) an interstate penalty order is made against the person in relation to the offence; and

(c) the interstate restraining order is registered under this Act; and

(d) the interstate penalty order is registered in the ACT under the Service and Execution of Process Act 1992 (Cwlth).

(2) On the registration of both of the orders mentioned in subsection (1) (c) and (d), a charge (an interstate penalty charge) to secure the amount payable under the interstate penalty order is created over the property in the ACT restrained under the interstate restraining order.

(3) If the interstate restraining order is amended, after the interstate penalty order is made, to add more property, and the interstate restraining order is registered under this part, the additional property is also subject to the penalty charge on registration of the amendment.

For this Act, an interstate penalty charge is taken to be a penalty charge under this Act.

In this Act:

inquiry notice means a notice by a police officer requiring a financial institution to give the officer stated information in relation to—

(a) an account with the institution (including whether an account has existed or does exist); or

(b) a transaction (other than in relation to an account) conducted, or proposed to be conducted, by or with the institution (including whether a transaction has been conducted).

Note 1 Account includes a safe-deposit box (see dict, def account).

Note 2 It is an offence to contravene an inquiry notice, to give false or misleading information in purported compliance with an inquiry notice, or to disclose the existence or operation of the notice (see div 12.6).

(1) A police officer of the rank of commander (or higher) may give an inquiry notice to a financial institution.

(2) The inquiry notice may be given only if the police officer is satisfied that the information to which the notice relates is relevant to deciding whether—

(a) an application could be made for an order under this Act (including for another order under this part), a corresponding law order, or a search warrant under part 13 (Search warrants), in relation to anyone; or

(b) a proceeding could be begun against anyone for an offence against this Act or a corresponding law or for a money laundering offence.

Note A money laundering offence includes a prescribed offence against a law of the Commonwealth, a State or another Territory, see dict.

(3) The police officer must give a copy of the notice to the financial institution to which the notice applies.

Note For how documents may be served, see Legislation Act, pt 19.5.

(1) An inquiry notice must be signed by the police officer giving it.

(2) The notice must state—

(a) that it is an inquiry notice under this Act; and

(b) the financial institution to which the notice applies; and

(c) the information that the financial institution is required to give; and

(d) how the information is to be given; and

(e) that the inquiry notice is a non-disclosable information order.

Note The disclosure of the existence or operation of a non-disclosable information order is prohibited, see s 191.

(3) The notice must also include a statement setting out the effect of division 12.6 (Information order offences) in relation to inquiry notices.

A civil proceeding does not lie against a financial institution, or an officer, employee or agent of a financial institution, in relation to loss, damage or injury of any kind to someone else because of the giving of information honestly to a police officer in compliance with (or purported compliance with) an inquiry notice

Note 1 For general provisions about a proceeding for a monitoring order (which is a confiscation proceeding—see s 235), see pt 14.

Note 2 In particular, no advance notice to anyone is required of the application for the order, and the application may be heard in closed court, without the offender or the public being present, see s 242.

In this Act:

monitoring order means an order under section 150 (Monitoring orders—making) requiring a financial institution give a police officer information obtained or held by the institution about transactions conducted, or proposed to be conducted, by a person with the institution.

(1) A police officer may apply to a relevant court for a monitoring order.

(2) The application may be made only if the police officer has reasonable grounds for suspecting that the person in relation to whom the order is sought—

(a) has committed, or is about to commit, a serious offence; or

(b) was involved in the commission, or is about to be involved in the commission, of a serious offence; or

(c) has derived, or is about to derive, property or a benefit from the commission of a serious offence.

Note Serious offence means an offence against a Territory law or the law of the Commonwealth, a State or another Territory that is punishable by imprisonment for 5 years or longer (see s 13 (2)).

(1) An application for a monitoring order must be supported by an affidavit of the applicant police officer stating the grounds for the officer’s suspicions.

(2) The court may require the police officer to give additional information about the grounds on which the order is sought.

(1) This section applies if an application is made under section 148 (Monitoring orders—application) to a relevant court for a monitoring order requiring a financial institution to give a police officer information obtained or held by the institution about transactions conducted, or proposed to be conducted with the institution, by the person in relation to whom the order is sought.

(2) The relevant court must make the monitoring order sought if, having regard to the police officer’s affidavit supporting the application and any other evidence before the court, the court is satisfied that there are reasonable grounds for the officer’s suspicions stated in the affidavit.

(3) The order must state—

(a) that it is a monitoring order under this Act; and

(b) the financial institution to which the order applies; and

(c) the person in relation to whom the order is made; and

(d) the nature of the transactions to be monitored; and

(e) the information that the financial institution is required to give; and

(f) how the information is to be given; and

(g) the period for which the order has effect; and

(h) that the monitoring order is a non-disclosable information order.

Note The disclosure of the existence or operation of a non-disclosable information order is prohibited, see s 191.

(4) The order must also include a statement setting out the effect of division 12.6 (Information order offences) in relation to monitoring orders.

(5) The period mentioned in subsection (3) (g) must not begin earlier than the day when notice of the order is given to the financial institution and must end not later than 3 months after the day when the order is made.

(6) To remove any doubt, a relevant court may make 2 or more monitoring orders (including for successive periods) in relation to the same person.

(7) The chief police officer must give a copy of a monitoring order to the financial institution to which the order applies.

Note For how documents may be served, see Legislation Act, pt 19.5.

Note 1 For general provisions about a proceeding for a transaction suspension order (which is a confiscation proceeding—see s 235), see pt 14.

Note 2 In particular, no advance notice to anyone is required of the application for the order, and the application may be heard in closed court, without the offender or the public being present, see s 242.

(1) In this Act:

transaction suspension order means an order under section 154 (Transaction suspension orders—making) requiring a financial institution, on becoming aware of a transaction (including a proposed transaction) to be conducted through a stated account, to—

(a) immediately tell a police officer about the transaction; and

(b) delay the processing of the transaction for 48 hours after the institution becomes aware of the transaction.

(2) In this section:

account does not include a safe-deposit box.

(1) A police officer may apply to a relevant court for a transaction suspension order.

(2) The application may be made only if the police officer has reasonable grounds for suspecting that—

(a) the person in relation to whom the order is sought—

(i) has committed, or is about to commit, a money laundering offence; or

(ii) was involved in the commission, or is about to be involved in the commission, of a money laundering offence; or

(iii) has derived, or is about to derive, property or a benefit from the commission of a money laundering offence; and

(b) the account in relation to which the order is sought is operated by, or under the effective control of, the person.

Note 1 For the meaning of effective control, see s 14.

Note 2 A money laundering offence includes a prescribed offence against a law of the Commonwealth, a State or another Territory, see dict.

Note 3 For the meaning of in relation to, see dict.

(3) To remove any doubt, the application may be made in relation to 2 or more accounts.

(1) An application for a transaction suspension order must be supported by an affidavit of the applicant police officer stating—

(a) the grounds for the officer’s suspicions; and

(b) the account in relation to which the order is sought.

(2) The court may require the police officer to give additional information about the grounds on which the order is sought.

(1) This section applies if an application is made under section 152 (Transaction suspension orders—application) to a relevant court for a transaction suspension order requiring a financial institution, on becoming aware of a transaction (including a proposed transaction) to be conducted through the account to which the application relates, to—

(a) immediately tell a police officer about the transaction; and

(b) delay the processing of the transaction for 48 hours after the institution becomes aware of the transaction.

(2) The relevant court must make the transaction suspension order sought if, having regard to the police officer’s affidavit supporting the application and any other evidence before the court, the court is satisfied that there are reasonable grounds for the officer’s suspicions stated in the affidavit.

(3) The order must state—

(a) that it is a transaction suspension order under this Act; and

(b) the terms of the order; and

(c) the financial institution to which the order applies; and

(d) the account in relation to which the order is made; and

(e) how notice of transactions (including proposed transactions) is to be given; and

(f) the period for which the order has effect; and

(g) that the transaction suspension order is a non-disclosable information order.

Note 1 The disclosure of the existence or operation of a non-disclosable information order is prohibited, see s 191.

Note 2 An order cannot be made in relation to a safe-deposit box (see s 151 (2)).

(4) The order must also include a statement setting out the effect of division 12.6 (Information order offences) in relation to transaction suspension orders.

(5) The period mentioned in subsection (3) (f) must not begin earlier than the day when notice of the order is given to the financial institution and must end not later than 3 months after the day when the order is made.

(6) To remove any doubt, a relevant court may make 2 or more transaction suspension orders (including for successive periods) in relation to the same account.

(7) The chief police officer must give a copy of a transaction suspension order to the financial institution to which the order applies.

Note For how documents may be served, see Legislation Act, pt 19.5.

Note 1 For general provisions about a proceeding for a production order (which is a confiscation proceeding—see s 235), see pt 14.

Note 2 In particular, no advance notice to anyone is required of the application for the order, and the application may be heard in closed court, without the offender or the public being present, see s 242.

In this Act:

production order means an order under section 159 (Production orders—making) requiring a person to give a police officer any property-tracking documents in the person’s possession or control that relate to the person or property (or both) stated in the order.

In this Act:

property-tracking document means—

(a) a document relevant to identifying, locating or quantifying—

(i) property (including tainted property and property under the effective control of a person) in relation to which action has been or could be taken under this Act or a corresponding law; or

(ii) benefits derived by a person from the commission (or the alleged commission) of an indictable offence; or

(iii) evidence in relation to property or benefits mentioned in subparagraph (i) or (ii); or

(b) a document relevant to identifying or locating a document necessary for the transfer of property mentioned in paragraph (a) (i); or

(c) a document relevant to understanding a document mentioned in paragraph (a) or (b).

Note 1 For the meaning of effective control, see s 14.

Note 2 For the meaning of in relation to, see dict.

Note 3 Indictable offence includes an offence against the law of the Commonwealth, a State or another Territory that may be dealt with under a law of the Commonwealth, the State or the other Territory as an indictable offence (see s 13 (2)).

(1) A police officer may apply to a relevant court for a production order.

(2) The application may be made only if the police officer has reasonable grounds for suspecting that—

(a) someone has committed an indictable offence; and

(b) the person against whom the order is sought has possession or control of a property-tracking document in relation to the offence.

Note Indictable offence includes an offence against the law of the Commonwealth, a State or another Territory that may be dealt with under a law of the Commonwealth, the State or the other Territory as an indictable offence (see s 13 (2)).

(1) An application for a production order must be supported by an affidavit of the applicant police officer stating the grounds for the officer’s suspicions.

(2) The court may require the police officer to give additional information about the grounds on which the order is sought.

(1) This section applies if an application is made under section 157 (Production orders—application) to a relevant court for a production order requiring a person to give a police officer any property-tracking documents in the person’s possession or control that relate to the person or property (or both) to which the application relates.

(2) The relevant court must make the production order sought if, having regard to the police officer’s affidavit supporting the application and any other evidence before the court, the court is satisfied that there are reasonable grounds for the officer’s suspicions stated in the affidavit.

(3) A production order must state—

(a) that it is a production order under this Act; and

(b) the person to whom the order applies; and

(c) that the person must give to a police officer any property-tracking documents in the person’s possession or control that relate to the person or property (or both) stated in the order; and

(d) the place where and the time when, or the period within which, the documents must to be given to a police officer; and

(e) whether the relevant court making the order has declared that the order is a non-disclosable production order.

Note The disclosure of the existence or operation of a non-disclosable information order is prohibited, see s 191.

(4) The order must also include a statement setting out the effect of division 12.6 (Information order offences) in relation to the order.

(5) The chief police officer must give a copy of a production order to the person to whom the order applies.

Note For how documents may be served, see Legislation Act, pt 19.5.

(1) On application by the applicant police officer, a relevant court hearing an application for a production order may declare that the order is a non-disclosable production order.

Note The disclosure of the existence or operation of a non-disclosable information order is prohibited, see s 191.

(2) In deciding whether to make a declaration under subsection (1), the court must have regard to whether the declaration—

(a) would promote the purposes of this Act; or

(b) is desirable to protect the integrity of an investigation (however described) for any purpose or a prosecution of an offence.

(3) The court may also have regard to any other relevant matter in deciding whether to make a declaration under subsection (1).

(1) This section applies if a court makes a production order requiring a person to give a document to a police officer.

(2) The person may apply to the court for an order varying the production order.

(3) If the court is satisfied that a document to which the production order relates is essential to the person’s lawful business activities, the court may, by order, vary the production order to require the person to make the document available to a police officer for inspection.

(1) If a document is given to a police officer under a production order, the officer may—

(a) take possession of, and make copies of, or take extracts from, the document; and

(b) keep the document for the period necessary for this Act.

(2) If a police officer keeps a document given to the officer under a production order, the officer must, if asked by a person who would be entitled to inspect the document if it was not in the officer’s possession—

(a) give the person a copy of the document certified by the officer in writing to be a true copy of the document; or

(b) at any reasonable time, allow the person to inspect the document, make copies of it or take extracts from it.

(3) If a document is made available to a police officer for inspection under a production order as varied under section 161, the officer may make copies of, or take extracts from, the document.

Note 1 For general provisions about a proceeding for an examination order (which is a confiscation proceeding—see s 235), see pt 14.

Note 2 In particular, no advance notice to anyone is required of the application for the order, and the application may be heard in closed court, without the person to whom the notice applies or the public being present, see s 242.

In this division:

associate, of a person, includes an individual or corporation that has a family, personal, business or other relationship with the person.

authorised investigator—see section 164 (1).

investigation, in relation to a person, means—

(a) an investigation of any of the following:

(i) any property of or under the effective control of, and any dealings with property by, the person or an associate of the person in relation to which action has been or could be taken under this Act or a corresponding law;

(ii) benefits derived by the person, or an associate of the person, from the commission (or the alleged commission) of an indictable offence;

(iii) the financial affairs of the person or an associate of the person; or

(b) an investigation to decide whether an application could be made for an order under this Act (including another order under this part), a corresponding law order or a search warrant under part 13 (Search warrants), in relation to anyone; or

(c) an investigation to decide whether a proceeding could be begun against anyone for an offence against this Act or a corresponding law or for a money laundering offence.

Note 1 For the meaning of effective control, see s 14.

Note 2 For the meaning of in relation to, see dict.

Note 3 A money laundering offence includes a prescribed offence against a law of the Commonwealth, a State or another Territory, see dict.

(1) The chief police officer may, in writing, authorise a police officer (an authorised investigator) of the rank of superintendent (or higher) to exercise powers under this division in relation to the investigation stated in the authorisation.

(2) The chief police officer may give an authorisation under subsection (1) only if the chief police officer is satisfied that the police officer has the necessary qualifications, expertise and experience to examine people in relation to the investigation.

(3) An authorised investigator must exercise the investigator’s functions under the supervision of, and in accordance with any directions of, the DPP.

(4) For subsection (3), the authorised investigator must consult with the DPP about the conduct of an examination.

In this Act:

examination order means an order under section 168 (Examination orders—making) authorising an authorised investigator to give the person (or people) to whom the order applies an examination notice in relation to the investigation stated in the order.

(1) An authorised investigator may apply to a relevant court for an examination order for the investigation for which the investigator is an authorised investigator.

(2) The application must state the investigation to which the application relates and the person (or people) the investigator proposes to examine in relation to the investigation.

(3) The application may be made only if the authorised investigator has reasonable grounds for suspecting that the person (or people) can give the investigator information or documents, including property-tracking documents, (or both) in relation to the investigation for which the investigator is an authorised investigator.

Note For the meaning of in relation to, see dict.

(1) An application for an examination order must be supported by an affidavit of the applicant authorised investigator stating the grounds for the investigator’s suspicions.

(2) The court may require the authorised investigator to give additional information about the grounds on which the order is sought.

(1) This section applies if an application is made under section 166 (Examination orders—application) to a relevant court for an examination order authorising an authorised investigator to give the person (or people) to whom the application relates an examination notice in relation to the investigation stated in the application.

(2) The relevant court must make the examination order if, having regard to the authorised investigator’s affidavit supporting the application and any other evidence before the court, the court is satisfied that—

(a) the investigator is authorised under section 164 (Authorised investigators) in relation to the investigation stated in the application; and

(b) there are reasonable grounds for the investigator’s suspicions stated in the affidavit.

(3) An examination order must state—

(a) that it is an examination order under this Act; and

(b) the person (or people) to whom the order applies; and

(c) the investigation to which the order relates; and

(d) whether the order applies to documents; and

(e) if the order applies to documents—the kinds of documents that a person to whom the order applies may be required to produce under an examination notice; and

(f) whether the relevant court making the order has declared that the order is a non-disclosable examination order.

Note The disclosure of the existence or operation of a non-disclosable information order is prohibited, see s 191.

(1) On application by the applicant authorised investigator, a relevant court hearing an application for an examination order may declare that the order is a non-disclosable examination order.

Note The disclosure of the existence or operation of a non-disclosable information order is prohibited, see s 191.

(2) In deciding whether to make a declaration under subsection (1), the court must have regard to whether the declaration—

(a) would promote the purposes of this Act; or

(b) is desirable to protect the integrity of an investigation (however described) for any purpose or a prosecution of an offence.

(3) The court may also have regard to any other relevant matter in deciding whether to make a declaration under subsection (1).

In this Act:

examination notice means a notice by an authorised investigator requiring a person to give the investigator any information or documents (or both) the person has in relation to the investigation stated in the notice.

Note 1 For the meaning of in relation to, see dict.

Note 2 It is an offence to contravene an examination notice, to give false or misleading information in purported compliance with an examination notice, or to disclose the existence or operation of the notice (see sdiv 12.5.5 and div 12.6).

(1) An authorised investigator may give an examination notice to a person who is subject to an examination order for the investigation authorised by the order.

Note For how documents may be served, see Legislation Act, pt 19.5.

(2) The examination notice is a non-disclosable examination notice if the relevant court that made the examination order to which the notice relates declared that the examination order is a non-disclosable examination order.

Note The disclosure of the existence or operation of a non-disclosable information order is prohibited, see s 191.

(3) To remove any doubt, an authorised investigator may give 2 or more examination notices in relation to the same investigation to the same person.

(1) An examination notice must be signed by the authorised investigator giving it.

(2) The notice must state—

(a) that it is an examination notice under this Act; and

(b) the person to whom the notice applies; and

(c) the investigation about which the person is to be examined; and

(d) the time when and the place where the person is required to attend for examination; and

(e) whether the examination notice is a non-disclosable examination notice.

Note 1 For when an examination notice is non-disclosable, see s 171 (2).

Note 2 The disclosure of the existence or operation of a non-disclosable information order is prohibited, see s 191.

(3) If the examination order to which the notice relates applies to documents, the notice may require the person to give the authorised investigator, at the examination, any documents (including property-tracking documents) of the kind stated in the order that the person has in relation to the investigation stated in the notice.

(4) The notice must also include a statement setting out the effect of subdivision 12.5.5 (Offences—examination notices) and division 12.6 (Information order offences) in relation to examination notices.

(1) The examination of a person must be conducted at the time and place stated in the examination notice given to the person.

(2) However, the time and place of the examination may be changed by agreement between the authorised investigator and the person to whom the examination notice was given or the person’s lawyer.

(1) A person to whom an examination notice applies may be examined on oath or affirmation by the authorised investigator.

Note For the taking of an oath or the making of an affirmation, see the Oaths and Affirmations Act 1984.

(2) For subsection (1), the authorised investigator may—

(a) require the person either to take an oath or make an affirmation; and

(b) administer an oath or affirmation to the person.

(3) The authorised investigator may require the person to answer a question that is put to the person at the examination

(1) The examination of the person must take place in private.

(2) The authorised investigator may give directions about who may be present during the examination, or during a part of it.

(3) The following people are entitled to be present at the examination:

(a) the authorised investigator;

(b) the person being examined, and the person’s lawyer;

(c) anyone else who is entitled to be present because of a direction under subsection (2).

(4) The authorised investigator may arrange for a record of the examination to be made.

(5) The Evidence (Miscellaneous Provisions) Act 1991, part 3 (Use of audiovisual links and audio links) applies to an examination under this division as if a reference to evidence were a reference to an examination under this division and any other necessary changes were made.

Note An authorised investigator is a Territory court for the Evidence (Miscellaneous Provisions) Act 1991, pt 3 (see s 14, defs State, Territory court and tribunal).

The lawyer of the person being examined may, at the times during the examination that the authorised investigator decides, address the investigator and examine the person about matters about which the investigator has examined (or proposes to examine) the person.

(1) If a document is given to an authorised investigator under an examination notice, the investigator may—

(a) take possession of, and make copies of, or take extracts from, the document; and

(b) keep the document for the period necessary for this Act.

(2) If an authorised investigator keeps a document given to the investigator under an examination notice, the investigator must, if asked by a person who would be entitled to inspect the document if it was not in the investigator’s possession—

(a) give the person a copy of the document certified by the investigator in writing to be a true copy of the document; or

(b) at any reasonable time, allow the person to inspect the document, make copies of it or take extracts from it.

(1) This section applies in relation to the examination of a person under an examination notice (other than a notice that is a non-disclosable examination notice under section 171 (2) (Examination notices—giving)).

Note 1 For non-disclosable examination notices, see s 171 (2). The disclosure of the existence or operation of a non-disclosable examination notice is prohibited, see s 191.

Note 2 The disclosure of matter relating to a direction under this section is prohibited, see s 184.

(2) An authorised investigator may, on the investigator’s own initiative or at the request of the person being examined or the DPP, give directions prohibiting or restricting the publication or disclosure of all or any of the following:

(a) the fact that an examination notice has been given to a person;

(b) any information about the examination (whether or not an examination has been held);

(c) any information given, statement made, document produced or thing done during the examination;

(d) any information, document or thing derived from anything mentioned in this subsection.

(3) In deciding whether to give a direction under subsection (2), the authorised investigator must have regard to whether the direction—

(a) would promote the purposes of this Act; or

(b) is desirable to protect the integrity of an investigation (however described) for any purpose or a prosecution of an offence.

(4) The authorised investigator may also have regard to any other relevant matter in deciding whether to give a direction under subsection (2).

(1) An authorised investigator has, in the exercise of his or her functions as an authorised investigator, the same protection and immunity as a judge.

(2) A lawyer appearing at the examination on behalf of the person being examined has the same protection and immunity as a barrister has in appearing for a party in a proceeding in the Supreme Court.

(3) A person being examined under this division—

(a) has the same protection as a witness in a proceeding in the Supreme Court; and

(b) in addition to the penalties provided by this Act, is subject to the same liabilities as a witness in a proceeding in the Supreme Court.

Note For other applicable offences, see div 12.6 (Information order offences).

(1) A person commits an offence if—

(a) the person knows that, or is reckless about the fact that, a person is an authorised investigator; and

(b) the person obstructs, hinders, intimidates or resists the investigator in the exercise of the investigator’s functions.

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

(2) Strict liability applies to subsection (1) (b).

(1) A person commits an offence if the person is required by an examination notice to attend an examination and the person fails to attend the examination at—

(a) the time and place stated in the notice; or

(b) the time and place as changed under section 173 (2) (Time and place of examination).

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

(2) An offence against this section is a strict liability offence.

(1) A person who is required by an examination notice to attend an examination commits an offence if, during the examination, the person—

(a) fails to be sworn or to make an affirmation that the authorised investigator requires the person to swear or make; or

(b) fails to answer a question that the authorised investigator requires the person to answer; or

(c) fails to produce a document that the person is required under the examination notice to produce at the examination; or

(d) leaves the examination before being excused by the authorised investigator.

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

(2) However, subsection (1) (c) does not apply if the person complied with the notice in relation to production of a document (if any) to the extent that it was practicable to do so.

(3) An offence against this section is a strict liability offence.

(1) A person commits an offence if the person—

(a) is present at an examination; and

(b) is not entitled under section 175 (3) (Conduct of examination) to be present.

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

(2) An offence against this section is a strict liability offence.

Note An offence against this section is a strict liability offence, see s (7).

(1) A person commits an offence if—

(a) an authorised investigator has given a direction under section 178 (2) (Examinations—additional restrictions on disclosure) prohibiting or restricting the publication or disclosure of a matter mentioned in the subsection; and

(b) the person has notice of the direction (whether by being given a copy of the direction or otherwise); and

(c) the person publishes or discloses the matter to someone else.

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

(2) A person commits an offence if—

(a) an authorised investigator has given a direction under section 178 (2) prohibiting or restricting the publication or disclosure of a matter mentioned in the subsection; and

(b) the person has notice of the direction (whether by being given a copy of the direction or otherwise); and

(c) the person publishes or discloses information to someone else; and

(d) the other person could infer from the information the matter to which the direction relates.

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

(3) Subsections (1) and (2) do not apply if the publication or disclosure is made to any of the following entities in the circumstances mentioned for the entity:

(a) a police officer—in any circumstances;

(b) an officer, employee or agent of the person—to ensure that the order is complied with and the person to whom the publication or disclosure is made is given notice of the direction (whether by being given a copy of the restraining order to which the direction relates or otherwise) by the person making the publication or disclosure;

(c) a lawyer—to obtain legal advice or representation in relation to the order;

(d) a relevant court—with the court’s leave.

Note The application for leave, and any proceeding with the court’s leave, must be heard in closed court, see s (8).

(4) Also, subsections (1) and (2) do not apply if the publication or disclosure is made—

(a) by a police officer in the exercise of the officer’s functions; or

(b) for the purpose of giving or obtaining legal advice, or making legal representations, in relation to the order.

(5) A person commits an offence if—

(a) an authorised investigator has given a direction under section 178 (2) (Examinations—additional restrictions on disclosure) prohibiting or restricting the publication or disclosure of a matter mentioned in the subsection; and

(b) the person receives information in relation to the matter in accordance with subsection (3) or (4); and

(c) the person ceases to be a person mentioned in subsection (3) or (4); and

(d) the person publishes or discloses the matter to someone else.

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

(6) A person commits an offence if—

(a) an authorised investigator has given a direction under section 178 (2) prohibiting or restricting the publication or disclosure of a matter mentioned in the subsection; and

(b) the person receives information in relation to the matter in accordance with subsection (3) or (4); and

(c) the person ceases to be a person mentioned in subsection (3) or (4); and

(d) the person publishes or discloses information to someone else; and

(e) the other person could infer from the information the matter to which the direction relates.

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

(7) An offence against this section is a strict liability offence.

(8) For subsection (3) (d), an application for leave, and any proceeding with the court’s leave, must be heard in closed court.

In this Act:

information order means—

(a) an inquiry notice; or

(b) a monitoring order; or

(c) a transaction suspension order; or

(d) a production order; or

(e) an examination order; or

(f) an examination notice.

A person commits an offence if—