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.