CONFISCATION ACT 1997 - SECT 141A Arrangements to avoid operation of Act

CONFISCATION ACT 1997 - SECT 141A

    (1)     In this section—

"scheme" means—

        (a)     any agreement, arrangement, understanding, promise or undertaking, whether express or implied and whether or not enforceable, or intended to be enforceable, by legal proceeding; or

        (b)     any plan, proposal, action, course of action or course of conduct.

    (2)     The DPP may apply to the Supreme Court for an order under subsection (6).

    (3)     The DPP must give written notice of the application to the person against whom the order is sought and any other person who the DPP considers has an interest in the property to which the scheme relates.

    (4)     At any time before it determines the application, the Supreme Court may direct the DPP to give notice of the application to any person, in the manner and within the time, that the Supreme Court considers appropriate.

    (5)     Any person who is given notice under subsection (4) is entitled to appear and to give evidence at the hearing of the application but the absence of a person does not prevent the Supreme Court from making an order under subsection (6).

    (6)     On an application under subsection (2), if the Supreme Court is satisfied that a person is carrying out, or has carried out a scheme for the purpose of directly or indirectly defeating, avoiding, preventing or impeding the operation of this Act, the Supreme Court may, in order to defeat that purpose, by order—

        (a)     declare the scheme to be void in whole or in part; or

        (b)     vary the operation of the scheme in whole or in part.

    (7)     For the purposes of subsection (6), in determining whether a scheme is being carried out or was carried out for the purpose of directly or indirectly defeating, avoiding, preventing or impeding the operation of this Act, it is irrelevant whether or not that purpose was the only or dominant purpose for the scheme, as long as it was a substantial purpose.

    (8)     The Supreme Court may make any additional orders that it considers appropriate in the circumstances for or with respect to any consequential or related matter or for giving effect to any order of the court under this section, including orders relating to—

        (a)     the disposition of property;

        (b)     the payment of money;

        (c)     the sale, disposal or other realisation of property and the disposal of the proceeds;

        (d)     the creation of a charge on property in favour of any person and the enforcement of the charge created;

        (e)     the rights of a person who acquired an interest in the property while the scheme was being carried out or afterwards and before the declaration was made.

    (9)     The Supreme Court may rescind or vary an order made under this section.

    (10)     The Supreme Court must ensure that any orders made under subsection (6), (8) or (9)—

        (a)     constitute the minimum interference with a person's rights relating to property, home, family or children that is necessary in the circumstances to defeat the purpose of directly or indirectly defeating, avoiding, preventing or impeding the operation of this Act; and

        (b)     are reasonably related to the objects of this Act set out in section 3A.