PROCEEDS OF CRIME ACT 1987 - SECT 23A Effect on third parties of registration of foreign or international forfeiture order
PROCEEDS OF CRIME ACT 1987 - SECT 23A
Effect on third parties of registration of foreign or international forfeiture order(1) This section applies where, after the commencement of this section, a court in Australia registers under the Mutual Assistance Act a foreign forfeiture order against property.
(1A) This section also applies if a court registers under section 45 of the International War Crimes Tribunals Act 1995 an order against property.
(2) On registering the foreign or international forfeiture order, the court shall direct the DPP to give or publish notice of the registration:
(a) to specified persons (other than a person convicted of a foreign or international offence in respect of which the order was made) the court has reason to believe may have an interest in the property; and
(b) in the manner and within the time the court considers appropriate.
(3) A person (other than a person convicted of a foreign or international offence in respect of which the foreign or international forfeiture order was made) who claims an interest in the property may apply to the court for an order under subsection ( 7).
(4) A person who was given notice of, or appeared at, the hearing held in connection with the making of the foreign or international forfeiture order is not entitled, except with the leave of the court, to apply under subsection ( 3).
(5) The court may grant leave under subsection ( 4) if satisfied that there are special grounds for doing so.
(6) Without limiting the generality of subsection ( 5), the court may grant a person leave under subsection ( 4) if the court is satisfied that:
(a) the person, for a good reason, did not attend the hearing referred to in subsection ( 4) although the person had notice of the hearing; or
(b) particular evidence that the person proposes to adduce in connection with the proposed application under subsection ( 3) was not available to the person at the time of the hearing referred to in subsection ( 4).
(7) If, on an application for an order under this subsection, the court is satisfied that:
(a) the applicant was not, in any way, involved in the commission of a foreign or international offence in respect of which the foreign or international forfeiture order was made; and
(b) if the applicant acquired his, her or its interest in the property at the time of or after the commission of such an offence--the applicant acquired the interest:
(i) for sufficient consideration; and
(ii) without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was, at the time of the acquisition, tainted property in relation to a foreign or international offence;
the court shall make an order:
(c) declaring the nature, extent and value (as at the time when the order is made) of the applicant's interest in the property; and
(i) directing the Commonwealth to transfer the interest to the applicant; or
(ii) declaring that there is payable by the Commonwealth to the applicant an amount equal to the value declared under paragraph ( c).
(8) Subject to subsection ( 9), an application under subsection ( 3) shall be made before the end of 6 weeks beginning on the day when the foreign or international forfeiture order is registered in the court.
(9) The court may grant a person leave to apply under subsection ( 3) outside the period referred to in subsection ( 8) if the court is satisfied that the person's failure to apply within that period was not due to any neglect on the person's part.
(10) A person who applies under subsection ( 3) shall give to the DPP and the Minister notice, as prescribed, of the application.
(11) The DPP shall be a party to proceedings on an application under subsection ( 3) and the Minister may intervene in such proceedings.
"foreign or international forfeiture order" means:
(a) the foreign forfeiture order mentioned in subsection ( 1) in relation to which this section applies; or
(b) the order mentioned in subsection ( 1A) in relation to which this section applies;
"foreign or international offence" means:
(a) a foreign serious offence; or
(b) a Tribunal offence within the meaning of the International War Crimes Tribunals Act 1995 ;
as the case requires.