Commonwealth Consolidated Acts

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MIGRATION ACT 1958 - SECT 261H

What happens if thing is claimed

             (1)  This section applies if the Secretary or Australian Border Force Commissioner gives the claimant a notice under section 261G about instituting proceedings:

                     (a)  to recover the thing; or

                     (b)  for a declaration that the thing is not forfeited.

             (2)  If, within the period of one month after the notice is given:

                     (a)  the claimant does not institute such proceedings; and

                     (b)  the Minister does not give a written order that the thing is not to be condemned as forfeited;

the thing is condemned as forfeited to the Commonwealth immediately after the end of that period.

             (3)  If the claimant institutes such proceedings within the period of one month after the notice is given, the thing is condemned as forfeited to the Commonwealth unless:

                     (a)  before the end of the proceedings, the Minister gives a written order that the thing is not to be condemned as forfeited; or

                     (b)  at the end of the proceedings, there is:

                              (i)  an order for the claimant to recover the thing; or

                             (ii)  if the thing has been sold or disposed of--an order for the Commonwealth to pay the claimant an amount in respect of the thing; or

                            (iii)  a declaration that the thing is not forfeited.

             (4)  For the purposes of subsection (3), if the proceedings go to judgment, they end:

                     (a)  if no appeal against the judgment is lodged within the period for lodging such an appeal--at the end of that period; or

                     (b)  if an appeal against the judgment is lodged within that period--when the appeal lapses or is finally determined.

             (5)  Proceedings relating to the thing may be instituted or continued even if it is disposed of or destroyed.

             (6)  If the court hearing the proceedings decides that it would have ordered that the thing be delivered to a person apart from the fact that the thing had been disposed of or destroyed, the court may make such orders as the court considers appropriate, including an order that the Commonwealth pay the person an amount equal to:

                     (a)  if the thing has been sold before the end of the proceedings--the proceeds of the sale of the thing, less such costs incurred by the Commonwealth in respect of the thing as the court considers appropriate; or

                     (b)  if the thing has been disposed of (except by sale) or destroyed before the end of the proceedings--the market value of the thing at the time it was disposed of or destroyed, less such costs incurred by the Commonwealth in respect of the thing as the court considers appropriate.



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