Commonwealth Consolidated Acts Commonwealth Consolidated Acts (1)
If:
(a) a person (in this subsection called the defendant ) is convicted of
a serious offence (otherwise than by reason of paragraph 5(1)(d));
(b) before the commencement of the Proceeds of Crime Act 2002 , a
restraining order is or was granted in respect of property (whether property
of the defendant or of some other person) in reliance on:
(i) the defendant’s conviction of that offence; or
(ii) the charging or proposed charging of the defendant with that
offence or a related offence;
(c) the restraining order, to the extent to which it relates to the
property, is not the subject of a declaration under subsection 48(4); and
(d) the restraining order is in force at the end of:
(i) the period of 6 months starting on the day of the conviction; or
(ii) if an order under section 30A is in force at the end of that
period—the end of the extended period;
the property is, under this
subsection, forfeited to the Commonwealth at the end of that period, or that
extended period, as the case may be.
(2)
Subject to subsection (3), where property is forfeited to the
Commonwealth by virtue of subsection (1), the property vests absolutely
in the Commonwealth.
(3)
Where registrable property is forfeited to the Commonwealth by virtue
of subsection (1):
(a) the property vests in equity in the Commonwealth but does not vest
in the Commonwealth at law until the applicable registration requirements have
been complied with;
(b) the Commonwealth is entitled to be registered as owner of the
property; and
(c) the Minister has power, on behalf of the Commonwealth, to do, or to
authorise the doing of, anything necessary or convenient to obtain the
registration of the Commonwealth as owner, including, without limiting the
generality of this, the execution of any instrument required to be executed by
a person transferring an interest in property of that kind.
(3A) If
registrable property has been forfeited to the Commonwealth because of
subsection (1):
(a) the DPP has power, on behalf of the Commonwealth, to do anything
necessary or convenient to give notice of, or otherwise protect, the equitable
interest of the Commonwealth in the property; and
(b) any such action by or on behalf of the Commonwealth is not a
dealing for the purposes of paragraph (4)(a).
(4)
Where property is forfeited to the Commonwealth under this section in
respect of a person’s conviction of a serious offence:
(a) the property shall not, except with the leave of the court that
made the relevant restraining order and in accordance with any directions of
the court, be disposed of, or otherwise dealt with, by or on behalf of the
Commonwealth, before the end of the appeal period in respect of the
conviction; and
(b) if, at the end of the appeal period in respect of the conviction,
the conviction has not been quashed, then, subject to any direction under
subsection (4A), the Official Trustee must, as soon as practicable after
the end of the appeal period:
(i) if the property is money—after paying the Official
Trustee’s remuneration and other costs, charges and expenses of the kind
referred to in subsection 55(1) payable to or incurred by it in connection
with the restraining order, credit the amount of the remainder of the money to
the Confiscated Assets Special Account as required by section 34B; and
(ii) if the property is not money—sell or otherwise dispose of
the property and, after paying the Official Trustee’s remuneration and
other costs, charges and expenses of the kind referred to in subsection 55(1)
payable to or incurred by it in connection with the restraining order or the
sale or disposition, credit the amount of the remainder of those proceeds to
the Confiscated Assets Special Account as required by section 34B.
(4A) Where
property is forfeited under this section because of a person’s
conviction of a serious offence, the Attorney‑General, or a prescribed
officer authorised by the Attorney‑General for the purposes of this
subsection, may, at or after the end of the appeal period in respect of the
conviction but before the property is dealt with under paragraph (4)(b),
direct that the property be disposed of, or otherwise dealt with, as specified
in the direction.
(5)
Without limiting the generality of subsection (4A), the directions
that may be given pursuant to that subsection include a direction that
property is to be disposed of in accordance with the provisions of a law
specified in the direction.
(6)
Where property is forfeited to the Commonwealth under
subsection (1), the Minister may give all directions that are necessary
or convenient to realise the Commonwealth’s interest in the property.
(7)
Without limiting the generality of subsection (6), where
registrable property is forfeited to the Commonwealth under
subsection (1), the Minister may direct an officer of the Department or a
police officer to do anything necessary and reasonable to obtain possession of
any document necessary for the transfer of the property.
(8)
A reference in this section to the appeal period in relation to the
conviction of a person of an offence is:
(a) in a case where the person is to be taken to have been convicted of
the offence by reason of paragraph 5(1)(b)—a reference to the
appeal period in relation to the finding of the person guilty of the offence;
and
(b) in a case where the person is to be taken to have been convicted of
the offence by reason of paragraph 5(1)(c)—a reference to the
appeal period in relation to the conviction of the person of the other offence
referred to in that paragraph.
(8A) Where a
court makes a restraining order in reliance on:
(a) a person’s conviction of a serious offence; or
(b) the charging or proposed charging of a person with such an offence;
a person may apply to the court for a declaration that property that was
subject to the restraining order has been forfeited to the Commonwealth under
subsection (1) and the court, if satisfied that the property has been
forfeited to the Commonwealth under that subsection, shall make a declaration
accordingly.
(9)
In this section:
"appeal period" , in relation to a person’s conviction of an offence,
means the period ending:
(a) if the period provided for the lodging of an appeal against the
conviction has ended without such an appeal having been lodged—at the
end of that period; or
(b) if an appeal against the conviction has been lodged—when the
appeal lapses or is finally determined.