Australian Capital Territory Current Acts

CONFISCATION OF CRIMINAL ASSETS ACT 2003 - SECT 76

    (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 under section 26 (Restraining orders over other property—application) in relation to an ordinary offence; or

        (b)     the property has been restrained (but not forfeited) under an order under section 31 (Restraining orders over other property—making) in relation to an ordinary offence; or

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

        (d)     the property is subject to forfeiture in relation to an ordinary 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 the Legislation Act

, dict, pt 1.

        (b)     the applicant was not a party to the relevant 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 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.