CONFISCATION ACT 1997 - SECT 21 Determination of exclusion application—restraining order—Schedule 1 offence

CONFISCATION ACT 1997 - SECT 21

    (1)     On an application made under section 20, where the restraining order has been made in relation to a Schedule 1 offence (other than for a purpose referred to in section 15(1)(b))—

S. 21(a) amended by No. 42/2007 s. 5(1)(a).

        (a)     if the court is satisfied that the property in which the applicant claims an interest—

              (i)     is not tainted property; and

              (ii)     will not be required to satisfy any purpose for which the restraining order was made—

the court may make an order excluding the applicant's interest in the property from the operation of the restraining order; or

S. 21(b) amended by No. 68/2009 s. 97(Sch. item 23.19).

        (b)     if the applicant is a person other than the accused and—

S. 21(b)(i) amended by No. 42/2007 s. 5(1)(b).

              (i)     the court is not satisfied as specified in paragraph (a)(i), the court may make an order excluding the applicant's interest in the property from the operation of the restraining order if satisfied that—

S. 21(b)(i)(A) amended by No. 87/2004 s. 22(1)(b).

    (A)     the applicant was not, in any way, involved in the commission of the Schedule 1 offence; and

S. 21(b)(i)(B) amended by Nos 87/2004 s. 22(1)(b), 68/2009 s. 97(Sch. item 23.19).

    (B)     where the applicant acquired the interest before the commission, or alleged commission, of the Schedule 1 offence, the applicant did not know that the accused would use, or intended to use, the property in, or in connection with, the commission of the Schedule 1 offence; and

S. 21(b)(i)(C) amended by No. 87/2004 s. 22(1)(b).

    (C)     where the applicant acquired the interest at the time of or after the commission, or alleged commission, of the Schedule 1 offence, the applicant acquired the interest without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was tainted property; and

S. 21(b)(i)(D) substituted by No. 42/2007 s. 5(2), amended by No. 68/2009 s. 97(Sch. item 23.19).

    (D)     the applicant's interest in the property was not subject to the effective control of the accused on the earlier of the date that the accused was charged with the Schedule 1 offence or the date that the restraining order was made in relation to the property; and

S. 21(b)(i)(E) amended by No. 68/2009 s. 97(Sch. item 23.19).

    (E)     where the applicant acquired the interest from the accused, directly or indirectly, that it was acquired for sufficient consideration; or

S. 21(b)(ii) amended by No. 42/2007 s. 5(1)(b).

              (ii)     the court is satisfied as specified in paragraph (a)(i) but not satisfied as specified in paragraph (a)(ii), the court may make an order excluding the applicant's interest in the property from the operation of the restraining order if satisfied that—

S. 21(b)(ii)(A) substituted by No. 42/2007 s. 5(3), amended by No. 68/2009 s. 97(Sch. item 23.19).

    (A)     the applicant's interest in the property was not subject to the effective control of the accused on the earlier of the date that the accused was charged with the Schedule 1 offence or the date that the restraining order was made in relation to the property; and

S. 21(b)(ii)(B) amended by No. 68/2009 s. 97(Sch. item 23.19).

    (B)     where the applicant acquired the interest from the accused, directly or indirectly, that it was acquired for sufficient consideration.

S. 21(2) inserted by No. 68/2010 s. 14(1).

    (2)     If the court makes an order under subsection (1), the court may also make an order declaring the nature, extent and value of the applicant's interest in the property.

S. 22 (Heading) amended by No. 27/2016 s. 9(1).

S. 22 amended by Nos 87/2004 s. 11(a), 68/2010 s. 14(3) (ILA s. 39B(1)).