CONFISCATION ACT 1997 - SECT 45A Relief from automatic forfeiture of property of serious drug offender

CONFISCATION ACT 1997 - SECT 45A

    (1)     If the residence of a serious drug offender is forfeited under section 36GA, an application may be made by a dependant of the serious drug offender to the court that made the serious drug offence restraining order for relief from the forfeiture of the residence.

    (2)     An application under subsection (1) must be made within 30 days after the property is forfeited to the Minister.

    (3)     On an application under subsection (1), the court may order that the amount referred to in subsection (4) be paid to the dependant out of the proceeds of the sale of the forfeited residence for the purpose of securing new accommodation if the court is satisfied that—

        (a)     the forfeited residence is the principal place of residence of the dependants; and

        (b)     the forfeited residence is not tainted property for the purpose of automatic forfeiture under Division 2 of Part 3 or derived property; and

        (c)     the dependants of the serious drug offender do not have the means to secure accommodation of a value equivalent to the prescribed amount.

    (4)     The amount that a court may order under subsection (3) be paid to a dependent is—

        (a)     the prescribed amount; or

        (b)     in the event that the proceeds of the sale of the forfeited residence are less than the prescribed amount—the amount of those proceeds.

    (5)     The court may order one payment only from the proceeds of the sale of the forfeited residence.

Example to s. 45A(5) repealed by No. 44/2022 s. 23(2).

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S. 45A(5A) inserted by No. 44/2022 s. 23(1).

    (5A)     For the purposes of subsection (5), the court may order that the payment be divided between 2 or more dependents as specified in the order.

    (6)     An applicant for an order under subsection (1) must give written notice of the application to the Minister or a person prescribed for the purposes of section 44(1).

    (7)     In this section—

S. 45A(7) def. of dependant amended by No. 27/2016 s. 16(a).

"dependant", of a serious drug offender, means a person who—

        (a)     has resided with the serious drug offender in the forfeited residence for a substantial period of time immediately prior to the making of the serious drug offence restraining order; and

        (b)     is wholly or substantially dependent on the serious drug offender for—

              (i)     financial support; or

              (ii)     personal care because the person has a severe disability, a medical condition or a condition of frailty;

S. 45A(7) def. of proceeds of sale inserted by No. 27/2016 s. 16(b).

"proceeds of sale" means the proceeds of the sale of the property after all mortgages and charges to which the property is subject have been discharged.

S. 45B inserted by No. 79/2014 s. 21.