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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Criminal and Found Property Disposal Bill 2005
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Interpretation 2
4. This Act's relationship with other Acts 5
Part 2 -- General
5. Chief officer deemed to be in possession of certain
property 6
6. Chief officer's functions in relation to property 6
Part 3 -- Seized property
Division 1 -- General
7. Interpretation 7
8. Application of this Part 7
9. Authority to retain seized property 7
10. Unauthorised dealing with seized property
prohibited 8
Division 2 -- Court orders as to seized property
11. Application for release of or permission to deal
with seized property 9
12. Dealing with an application made under s. 11 9
13. Court's powers on an application made under s. 11 10
Part 4 -- Found property
14. Finder of property, entitlements of 12
15. Found property that is wholly or partly prohibited
property 12
114--2B page i
Criminal and Found Property Disposal Bill 2005
Contents
16. Chief officer's functions in relation to found
property 13
Part 5 -- Disposing of held property
17. Perishable or dangerous property, disposal of 14
18. Unregulated property, disposal of 14
19. Partly prohibited property, disposal of 16
20. Wholly prohibited property, disposal of 18
Part 6 -- Determining who is entitled
to property
21. When the identity or whereabouts of a person
entitled are known 19
22. Measures to ascertain who is entitled 20
23. Finder of property may be taken to be owner in
some cases 20
24. Claim to property, making of 20
25. Dealing with claims to property 21
26. Disputed claims etc., application to court may be
made 22
27. Courts' powers on disputed claims 22
Part 7 -- Disposing of forfeited
property
28. Disposal to be delayed until outcome of any appeal 24
29. How forfeited property must be disposed of 24
Part 8 -- Miscellaneous
30. Delegation by chief officers 26
31. Valuation of property 26
32. Sale of property 26
33. Title to property disposed of under this Act 27
34. Officials protected from personal liability 27
35. Regulations 28
Defined Terms
page ii
Western Australia
LEGISLATIVE ASSEMBLY
(Proforma Amendments and as amended during consideration in detail)
Criminal and Found Property Disposal Bill 2005
A Bill for
An Act to provide for the disposal of --
· property seized in the course of certain criminal investigations;
and
· property that has been found and that is in the possession of the
police or certain government agencies,
and for related matters.
The Parliament of Western Australia enacts as follows:
page 1
Criminal and Found Property Disposal Bill 2005
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This is the Criminal and Found Property Disposal Act 2005.
2. Commencement
5 This Act comes into operation on a day fixed by proclamation.
3. Interpretation
In this Act, unless the contrary intention appears --
"appropriate court", in relation to property, means --
(a) the Magistrates Court if the value of the property is
10 not more than that court's jurisdictional limit, as that
term is defined by the Magistrates Court (Civil
Proceedings) Act 2004 section 4;
(b) the District Court if the value of the property is not
more than that court's jurisdictional limit, as that
15 term is defined by the District Court of Western
Australia Act 1969 section 6; or
(c) the Supreme Court in any other case;
"chief officer" of a prescribed agency, means --
(a) in the case of the Police Force and the department of
20 the Public Service that principally assists in the
administration of the Police Act 1892 -- the
Commissioner of Police appointed under the Police
Act 1892;
(b) in the case of a government agency --
25 (i) if the agency is a body that has a chief
executive officer -- the chief executive
officer;
(ii) if the agency is a body that does not have a
chief executive officer -- an officer of the
30 body prescribed to be the chief officer;
page 2
Criminal and Found Property Disposal Bill 2005
Preliminary Part 1
s. 3
(iii) if the agency is the holder of an office, post or
position -- the individual who holds the
office, post or position;
"claim" to property, means a claim of which notice has been
5 given in accordance with section 24;
"criminal investigation" means an investigation into whether
an offence has been committed or into who committed an
offence;
"forfeited property" means property that under a written law
10 is, or is ordered to be, forfeited to the State;
"found property" means any property, other than seized
property, that has been found, irrespective of whether it had
been lost or abandoned before it was found;
"government agency" means any body (whether corporate or
15 unincorporate) or the holder of any office, post or position,
being a body, office, post or position established under a
written law for a public purpose;
"held property" means any property, other than seized
property and forfeited property, that is in the possession of
20 the chief officer of a prescribed agency, by virtue of
section 5;
"holding expenses" for property in the possession of a chief
officer, means the expenses incurred by the officer under
section 6;
25 "interest" in property, includes an equitable interest in it;
"net proceeds" of a sale of property, means the gross proceeds
of the sale minus --
(a) the holding expenses for the property before the sale;
and
30 (b) the expenses of and incidental to the sale and any
attempted sale of the property;
"partly prohibited property" means property the possession
of which by a member of the public is prohibited under a
written law except in circumstances prescribed by the law;
page 3
Criminal and Found Property Disposal Bill 2005
Part 1 Preliminary
s. 3
"person entitled" to property, means --
(a) the owner of the property or a person authorised by
the owner to possess the property; or
(b) a person who is otherwise legally entitled to
5 possession of the property;
"prescribed" means prescribed by regulations made under this
Act;
"prescribed agency" means --
(a) the Police Force;
10 (b) the department of the Public Service that principally
assists in the administration of the Police Act 1892;
and
(c) any other government agency that is prescribed, or
that another Act says is a prescribed agency for the
15 purposes of this Act;
"seized property" means property that has been seized in the
course of a criminal investigation other than --
(a) any sample taken or seized under the Criminal
Investigation Act 2005 or any other written law; and
20 (b) any thing used in obtaining an identifying particular
of a person under the Criminal Investigation
(Identifying People) Act 2002;
"State" means the State of Western Australia or the Crown in
right of Western Australia;
25 "unregulated property" means property that is neither wholly
prohibited property nor partly prohibited property;
"wholly prohibited property" means property the possession
of which by a member of the public is totally prohibited
under a written law.
page 4
Criminal and Found Property Disposal Bill 2005
Preliminary Part 1
s. 4
4. This Act's relationship with other Acts
(1) Except as provided by section 15(1), this Act does not affect the
operation of --
(a) any other written law that provides for the disposal of
5 forfeited property or property that has been seized or
abandoned;
(b) the Criminal Property Confiscation Act 2000;
(c) the Pawnbrokers and Second-hand Dealers Act 1994
section 86; or
10 (d) the Road Traffic Act 1974 Part V Division 4.
(2) If a provision in this Act is inconsistent with a provision in the
Criminal Property Confiscation Act 2000, the provision in that
Act prevails.
page 5
Criminal and Found Property Disposal Bill 2005
Part 2 General
s. 5
Part 2 -- General
5. Chief officer deemed to be in possession of certain property
For the purposes of this Act, the chief officer of a prescribed
agency is to be taken to be in possession of any property that is
5 in the possession of the agency, or an employee or officer of the
agency, and that is --
(a) found property that has been found by the agency or an
employee or officer of it or by some other person;
(b) seized property that has been seized in the course of a
10 criminal investigation by the agency; or
(c) seized property that has been seized in the course of a
criminal investigation by the agency and that becomes
forfeited property.
6. Chief officer's functions in relation to property
15 (1) The chief officer of a prescribed agency --
(a) has the control and management of property in the
officer's possession by virtue of section 5; and
(b) must take reasonable steps to ensure the property is kept
safely, and is appropriately stored, managed and
20 maintained, until the property is disposed of under this
Act.
(2) A chief officer may enter into a contract with a person under
which the person stores, manages or maintains any property in
the chief officer's possession by virtue of section 5.
page 6
Criminal and Found Property Disposal Bill 2005
Seized property Part 3
General Division 1
s. 7
Part 3 -- Seized property
Division 1 -- General
7. Interpretation
In this Part --
5 "deal with" seized property, includes to lease, sell, transfer,
mortgage, give away, move, use and destroy the property.
8. Application of this Part
This Part applies to and in respect of any seized property that is
in the possession of the chief officer of a prescribed agency by
10 virtue of section 5.
9. Authority to retain seized property
(1) A chief officer's authority to retain any property that is seized
property is subject to any order made under section 13 in
relation to the property.
15 (2) A chief officer's authority to retain seized property as seized
property ceases if --
(a) the property is not property that may be forfeited to the
State;
(b) the property is property that may be forfeited to the State
20 but a court has refused to order its forfeiture;
(c) the property is not the subject of proceedings under the
Criminal Property Confiscation Act 2000;
(d) seizure and retention of the property is not authorised by
another written law; and
25 (e) it is no longer necessary for the property to be retained
for one or more of these purposes --
(i) to do a forensic examination (as that term is
defined by the Criminal Investigation Act 2005)
on it;
page 7
Criminal and Found Property Disposal Bill 2005
Part 3 Seized property
Division 1 General
s. 10
(ii) to preserve its evidentiary value;
(iii) to prevent it from being used in the commission
of an offence.
(3) Subject to any order made under section 13, when a chief
5 officer's authority to retain seized property ceases under
subsection (2) the property is to be taken for the purposes of this
Act --
(a) to have ceased to be seized property; and
(b) to have become held property,
10 and the chief officer must dispose of it under Part 5.
(4) Unless the chief officer releases it to a person entitled to it, the
chief officer must not dispose of seized property that has
become held property under subsection (3) until at least one
month has elapsed since it became held property.
15 10. Unauthorised dealing with seized property prohibited
(1) A person who deals with property that the person knows is
seized property commits an offence unless the dealing is
authorised by --
(a) an order made under section 13; or
20 (b) a written authorisation given under subsection (3).
Penalty: a fine of $5 000.
(2) Subsection (1) does not apply to the chief officer of a prescribed
agency who is in possession of the property, or any employee or
officer of the agency, acting lawfully in the course of duty.
25 (3) The chief officer of a prescribed agency who is in possession of
any seized property may give a person a written authorisation to
deal with the property.
(4) Despite any other written law, if a lease, sale, transfer, mortgage
or gift of, or any other legal transaction involving, seized
30 property contravenes this section, it has no effect, whether in
law, equity or otherwise.
page 8
Criminal and Found Property Disposal Bill 2005
Seized property Part 3
Court orders as to seized property Division 2
s. 11
Division 2 -- Court orders as to seized property
11. Application for release of or permission to deal with seized
property
(1) A person may apply to the appropriate court for --
5 (a) an order that the chief officer of a prescribed agency
release seized property that is in the officer's possession
to the applicant; or
(b) an order permitting the applicant to deal with seized
property that is in the possession of the chief officer of a
10 prescribed agency.
(2) The application must be made in accordance with rules of court
and must be served on the chief officer.
12. Dealing with an application made under s. 11
(1) On an application made under section 11 by a person (the
15 "aggrieved person"), the chief officer and the aggrieved person
are entitled to be heard.
(2) On such an application the chief officer may apply to the court
for an order that information given to the court that is relevant
to the seizure of the property not be disclosed to the aggrieved
20 person.
(3) An application under subsection (2) may be made without
notice to the aggrieved person and may be heard and decided in
private and in the absence of the aggrieved person.
(4) On an application made under subsection (2), the court must not
25 make an order restricting the disclosure of information unless
satisfied the disclosure might prejudice the safety of any person
or the investigation of an offence to which the seized property
relates.
page 9
Criminal and Found Property Disposal Bill 2005
Part 3 Seized property
Division 2 Court orders as to seized property
s. 13
13. Court's powers on an application made under s. 11
(1) On an application made under section 11, the appropriate court
may make any order it thinks fit including --
(a) an order that requires the application to be served on --
5 (i) a person who has made a claim to the seized
property to the chief officer who is in possession
of the property;
(ii) a person with an interest in the seized property;
(b) if there are 2 or more of the persons referred to in
10 paragraph (a), and even if one or more of them has not
made a claim -- any order that might be made under
section 27;
(c) if the court permits a person to deal with seized
property -- an order imposing conditions on the person
15 doing so;
(d) an order as to the costs of the application.
(2) The court must not order that seized property be released to a
person unless satisfied that --
(a) the person is a person entitled to the property;
20 (b) it would be lawful for the person to possess the property;
and
(c) under section 9 the chief officer's authority to retain the
property as seized property has ceased.
(3) A condition imposed under subsection (1)(c) may require a
25 person to give security for payment to the State of the value of
the seized property.
(4) Any security given under such a condition is to be dealt with
according to the court's order if the seized property --
(a) is forfeited to the State; or
30 (b) otherwise ceases to be seized property.
page 10
Criminal and Found Property Disposal Bill 2005
Seized property Part 3
Court orders as to seized property Division 2
s. 13
(5) A person who contravenes a condition imposed under
subsection (1)(c) commits an offence.
Penalty: a fine of $12 000 and imprisonment for 12 months.
page 11
Criminal and Found Property Disposal Bill 2005
Part 4 Found property
s. 14
Part 4 -- Found property
14. Finder of property, entitlements of
(1) A person who gives possession of any found property to a
prescribed agency is entitled to a receipt for the property from
5 the chief officer of the agency.
(2) The chief officer of a prescribed agency must ensure that a
person who gives possession of any found property to the
agency is advised of the entitlement under subsection (1).
15. Found property that is wholly or partly prohibited property
10 (1) This section applies despite section 4(1)(a) and despite any
other written law.
(2) If --
(a) a person gives possession of any found property to a
government agency; or
15 (b) any found property is found by a government agency or
an employee or officer of a government agency,
and the property is wholly prohibited property or partly
prohibited property, the agency or its employee or officer may
seize the property.
20 (3) Unless the person who seizes property under subsection (2) is
entitled under another written law to seize the property, the
person must not dispose of it under Part 5 but must immediately
give possession of the property to --
(a) a person who is authorised under another written law to
25 investigate offences in relation to possession of the
property; or
(b) a police officer.
(4) A person given possession of property under subsection (3)(a)
may seize it even if not authorised to do so under another
30 written law.
page 12
Criminal and Found Property Disposal Bill 2005
Found property Part 4
s. 16
(5) If --
(a) a person gives possession of any found property to a
police officer, whether or not under subsection (3); or
(b) any found property is found by a police officer,
5 and the property is wholly prohibited property or partly
prohibited property, the officer may seize the property even if
not authorised to do so under another written law.
(6) If a person who seizes property under subsection (4) or (5) is a
prescribed agency or an employee or officer of a prescribed
10 agency --
(a) the property is, for the purposes of Part 3, to be taken to
be seized property in the possession of the chief officer
of the agency; and
(b) Part 3 applies accordingly.
15 16. Chief officer's functions in relation to found property
(1) This section applies to and in respect of any found property that
is in the possession of the chief officer of a prescribed agency
by virtue of section 5, other than property to which section 15
applies.
20 (2) Unless the seizure and retention of the found property is
authorised by another written law, the property is to be taken to
be held property and the chief officer must dispose of it under
Part 5.
(3) Unless the chief officer releases it to a person entitled to it, the
25 chief officer must not dispose of found property that has
become held property under subsection (2) until at least
2 months have elapsed since it became held property.
page 13
Criminal and Found Property Disposal Bill 2005
Part 5 Disposing of held property
s. 17
Part 5 -- Disposing of held property
17. Perishable or dangerous property, disposal of
If held property in the possession of the chief officer of a
prescribed agency is not wholly prohibited property and --
5 (a) is likely to perish before it can be disposed of under
section 18 or 19; or
(b) would be dangerous to keep until it can be disposed of
under section 18 or 19,
the chief officer may --
10 (c) sell the property under section 32 and deal with the net
proceeds under section 18 as if it were held property that
is unregulated property;
(d) if it is not practicable to sell the property --
(i) release it to a charitable or educational
15 institution;
(ii) destroy it;
or
(e) if the property would be dangerous to keep until it can
be disposed of under section 18 or 19 and is of use to the
20 agency -- retain it.
18. Unregulated property, disposal of
(1) If the chief officer of a prescribed agency is in possession of
held property that is unregulated property, the chief officer
must --
25 (a) if the officer knows the identity and whereabouts of a
person entitled to the property -- release it to the
person;
(b) if the officer knows the identity of a person entitled to
the property but not the whereabouts --
30 (i) if the property is money -- deal with it under the
Unclaimed Money Act 1990 as prescribed
retained money;
page 14
Criminal and Found Property Disposal Bill 2005
Disposing of held property Part 5
s. 18
(ii) if the property is not money and its value is equal
to or greater than an amount prescribed -- sell it
under section 32 and deal with the net proceeds
under the Unclaimed Money Act 1990 as
5 prescribed retained money;
(iii) otherwise -- deal with it under
paragraph (d)(ii), (iii), (iv) or (v), as the chief
officer thinks fit;
(c) if the officer does not know both the identity and
10 whereabouts of a person entitled to the property and the
property is money -- credit it to the Consolidated Fund;
(d) if the officer does not know both the identity and
whereabouts of a person entitled to the property and the
property is not money -- do whichever of the following
15 the chief officer thinks fit --
(i) sell it under section 32 and credit the net
proceeds to the Consolidated Fund;
(ii) give the property to a charitable or educational
institution;
20 (iii) if the property is of use to the agency -- retain it;
(iv) if the property is of use to another government
agency -- give it to that agency; or
(v) destroy it.
(2) If under subsection (1), the chief officer of a prescribed agency
25 must release property to a person, the officer must give the
person a written notice that advises the person --
(a) that the person may collect the property from the
agency;
(b) where and when the property may be collected; and
30 (c) that if the property is not collected within one month, or
such longer period as the notice specifies, after the date
on which the notice is sent to the person, the person will
cease to be entitled to the property.
page 15
Criminal and Found Property Disposal Bill 2005
Part 5 Disposing of held property
s. 19
(3) If a person is given a notice under subsection (2) and does not
collect the property within the period specified in the notice, the
chief officer may take whichever of the courses of action in
subsection (1)(d) the chief officer thinks fit.
5 19. Partly prohibited property, disposal of
(1) If the chief officer of a prescribed agency is in possession of
held property that is partly prohibited property, the chief officer
must --
(a) if the officer knows the identity and whereabouts of a
10 person entitled to the property and it would be lawful for
the person to possess it -- release it to the person;
(b) if the officer knows the identity and whereabouts of a
person entitled to the property but it would not be lawful
for the person to possess it --
15 (i) if the person so requests and pays the officer's
costs of doing so, and it is practicable to do so --
modify or treat the property so as to make
possession of it by the person lawful and release
it to the person; or
20 (ii) if the person so requests -- release it to a person
who can lawfully possess it;
(c) if the officer knows the identity of a person entitled to
the property but not the whereabouts --
(i) if the value of the property is equal to or greater
25 than an amount prescribed -- sell it under
section 32 and deal with the net proceeds under
the Unclaimed Money Act 1990 as prescribed
retained money; or
(ii) otherwise -- deal with it under
30 paragraph (d)(ii), (iii) or (iv), as the chief officer
thinks fit;
page 16
Criminal and Found Property Disposal Bill 2005
Disposing of held property Part 5
s. 19
(d) if the officer does not know both the identity and
whereabouts of a person entitled to the property, or if
the property is not dealt with under paragraph (b) -- do
whichever of the following the chief officer thinks fit --
5 (i) sell it under section 32 and credit the net
proceeds to the Consolidated Fund;
(ii) if the property is of use to the agency for training
or educational purposes -- retain it for those
purposes;
10 (iii) if the property is of use to another government
agency for training or educational purposes --
give it to that agency for those purposes; or
(iv) destroy it.
(2) If the chief officer of a prescribed agency is in possession of
15 held property and knows the identity and whereabouts of a
person entitled to the property, the chief officer must not act
under subsection (1)(d) unless --
(a) the chief officer has given the person a written notice
about the effect of subsection (1)(b) and this subsection;
20 and
(b) no request that the chief officer is able to comply with
has been made under subsection (1)(b) within one
month, or such longer period as the chief officer may
permit, after the date on which the notice is sent to the
25 person.
(3) If under subsection (1), the chief officer of a prescribed agency
must release property to a person, the officer must give the
person a written notice that advises the person --
(a) that the person may collect the property from the
30 agency;
(b) where and when the property may be collected; and
page 17
Criminal and Found Property Disposal Bill 2005
Part 5 Disposing of held property
s. 20
(c) that if the property is not collected within one month, or
such longer period as the notice specifies, after the date
on which the notice is sent to the person, the person will
cease to be entitled to the property.
5 (4) If a person is given a notice under subsection (3) and does not
collect the property within the period specified in the notice, the
chief officer may take whichever of the courses of action in
subsection (1)(d) the chief officer thinks fit.
20. Wholly prohibited property, disposal of
10 If the chief officer of a prescribed agency is in possession of
held property that is wholly prohibited property, the chief
officer must deal with the property under section 29(2) as if it
were forfeited property.
page 18
Criminal and Found Property Disposal Bill 2005
Determining who is entitled to property Part 6
s. 21
Part 6 -- Determining who is entitled to property
21. When the identity or whereabouts of a person entitled are
known
(1) For the purposes of this Act, the chief officer of a prescribed
5 agency who is in possession of any property by virtue of
section 5 knows the identity of a person entitled to the property
if --
(a) the officer --
(i) is satisfied on the balance of probabilities that a
10 person whose identity is known to the officer is a
person entitled to the property; and
(ii) does not know and has no notice of the identity
or whereabouts of any other person entitled to
the property;
15 (b) under section 25(1)(a) the officer has admitted a claim
to the property; or
(c) under this Part a court has ordered that a claim by the
person to the property be admitted.
(2) For the purposes of this Act, the chief officer of a prescribed
20 agency who is in possession of any property by virtue of
section 5 knows the whereabouts of a person entitled to the
property if the officer has a postal address for a person entitled
to the property.
(3) If the chief officer of a prescribed agency who is in possession
25 of any property by virtue of section 5 knows the identity and
whereabouts of a person entitled to the property, the chief
officer must take reasonable measures to ensure the person is
aware that the chief officer is in possession of the property.
page 19
Criminal and Found Property Disposal Bill 2005
Part 6 Determining who is entitled to property
s. 22
22. Measures to ascertain who is entitled
(1) If a chief officer does not know the identity of a person entitled
to any held property in the possession of the officer, the officer
must take reasonable measures to ascertain the identity before
5 disposing of the property under this Act.
(2) If a chief officer does not know the whereabouts of a person
entitled to any held property in the possession of the officer, the
officer must take reasonable measures to ascertain the
whereabouts before disposing of the property under this Act.
10 23. Finder of property may be taken to be owner in some cases
For the purposes of this Act, the finder of property may be taken
to be the owner of the property if --
(a) at least 2 months have elapsed since the date on which
the chief officer in possession of the property was given
15 a claim to it by the finder;
(b) the only claim the chief officer has received to the
property is from the finder;
(c) the chief officer does not know and has no notice of the
identity or whereabouts of a person entitled to the
20 property; and
(d) the chief officer has complied with section 22.
24. Claim to property, making of
(1) A person who claims to be a person entitled to any property in
the possession of the chief officer of a prescribed agency by
25 virtue of section 5, or an interest in any such property, may give
the officer notice of the claim.
(2) A person who claims to be the finder of any property in the
possession of the chief officer of a prescribed agency under
section 5, may give the officer notice of the claim.
page 20
Criminal and Found Property Disposal Bill 2005
Determining who is entitled to property Part 6
s. 25
(3) A notice of a claim cannot be given under subsection (2) by --
(a) a member of the Police Force; or
(b) a government agency, or an employee or officer of a
government agency, if he or she found the property in
5 the course of duty.
(4) A notice of a claim must --
(a) be in writing;
(b) describe the property concerned;
(c) give an address for service for the claimant; and
10 (d) be accompanied by a statutory declaration that sets out
the grounds for the claim or the circumstances in which
the property was found, as the case requires.
25. Dealing with claims to property
(1) The chief officer of a prescribed agency who receives a claim to
15 property in the officer's possession --
(a) may admit the claim if he or she --
(i) is satisfied on the balance of probabilities that
that the claimant is a person entitled to the
property; and
20 (ii) does not know and has no notice of the identity
or whereabouts of any other person entitled to
the property;
(b) otherwise, may reject the claim; and
(c) must give the claimant written notice of the decision as
25 soon as practicable after it is made.
(2) If the chief officer of a prescribed agency receives 2 or more
claims to the same property, the officer must give each claimant
notice of each other claim.
page 21
Criminal and Found Property Disposal Bill 2005
Part 6 Determining who is entitled to property
s. 26
(3) If the chief officer of a prescribed agency rejects a claim, the
officer must not release the property or dispose of it under this
Act until --
(a) the time for making an application under section 26 has
5 elapsed without such an application being made; or
(b) any such application has been finally determined.
26. Disputed claims etc., application to court may be made
(1) If the chief officer of a prescribed agency rejects a claim, the
claimant may apply to the appropriate court for an order under
10 section 27.
(2) An application under subsection (1) must be made within
21 days after the date on which the chief officer sends the
claimant written notice under section 25(1)(c).
(3) If --
15 (a) there are competing claims to property; or
(b) a chief officer wants directions in relation to a claim,
the officer may apply to the appropriate court for an order under
section 27.
(4) If there are 2 or more competing claims to the same property a
20 single application may be made under subsection (3) in respect
of all of the claims.
(5) Subject to this section, an application under this section must be
made in accordance with rules of court.
27. Courts' powers on disputed claims
25 (1) On an application made under section 26 to a court, the court
may --
(a) order that a claim be admitted;
(b) order that a claim be rejected and that the claimant, and
any person claiming under the claimant, be barred from
30 claiming the property concerned;
page 22
Criminal and Found Property Disposal Bill 2005
Determining who is entitled to property Part 6
s. 27
(c) give any directions it thinks fit in relation to a claim;
(d) make any other orders as may be just in relation a claim;
(e) make orders as to the payment of the holding expenses
for the property;
5 (f) make orders as to the payment of the costs of the
application.
(2) On an application made under section 26 by a chief officer in
relation to 2 or more competing claims, the officer is entitled to
an order that the officer's costs of making the application be
10 paid by some or all of the claimants.
page 23
Criminal and Found Property Disposal Bill 2005
Part 7 Disposing of forfeited property
s. 28
Part 7 -- Disposing of forfeited property
28. Disposal to be delayed until outcome of any appeal
A person must not exercise the powers in this Part in relation to
forfeited property before the expiration of the time allowed for
5 appealing against the order (if any) that ordered the property to
be forfeited to the State, or, if an appeal is lodged within that
time, before the appeal is concluded.
29. How forfeited property must be disposed of
(1) If forfeited property in the possession of the chief officer of a
10 prescribed agency is money, the officer must credit it to the
Consolidated Fund.
(2) If forfeited property in the possession of the chief officer of a
prescribed agency is wholly prohibited property or partly
prohibited property, the officer must do whichever of the
15 following the officer thinks fit --
(a) if it is practicable to do so, modify or treat the property
so as to make possession of it lawful and --
(i) give it to a charitable or educational institution or
to a government agency; or
20 (ii) sell it under section 32, and credit the net
proceeds to the Consolidated Fund;
(b) if the property is of use to the agency for training or
educational purposes -- retain it for those purposes;
(c) if the property is of use to another government agency
25 for training or educational purposes -- give it to that
agency for those purposes; or
(d) destroy it.
(3) If forfeited property in the possession of the chief officer of a
prescribed agency is neither money nor wholly prohibited
30 property nor partly prohibited property, the officer must do
whichever of the following the officer thinks fit --
(a) retain it for use by the agency;
page 24
Criminal and Found Property Disposal Bill 2005
Disposing of forfeited property Part 7
s. 29
(b) give it to a charitable or educational institution or to a
government agency;
(c) sell it under section 32 and credit the net proceeds to the
Consolidated Fund; or
5 (d) destroy it.
page 25
Criminal and Found Property Disposal Bill 2005
Part 8 Miscellaneous
s. 30
Part 8 -- Miscellaneous
30. Delegation by chief officers
(1) A chief officer may delegate a function conferred on the officer
by this Act, other than this power of delegation.
5 (2) A delegation must be in writing.
31. Valuation of property
(1) If the chief officer of a prescribed agency has to determine the
value of property for the purposes of this Act, the officer must
take reasonable measures to determine the value.
10 (2) In order to decide whether it is an appropriate court in relation
to any property, a court may determine the property's value.
(3) A court's determination under subsection (2) is not invalid only
because the value of the property exceeds the maximum
permitted to be dealt with by the court under this Act.
15 32. Sale of property
(1) Any sale of property under this Act must be by public auction or
public tender unless --
(a) the value of the property is below a value prescribed; or
(b) the property is of a kind prescribed, whether or not also
20 below a value prescribed,
in which case the property may be sold by private agreement.
(2) Subject to subsection (1), a chief officer who may sell any
property under this Act may enter into a contract for the sale of
the property on terms that the officer thinks fit.
25 (3) If under this Act any property is sold, the chief officer who has
possession of the property may sign any document that is
needed to transfer the property to the purchaser.
page 26
Criminal and Found Property Disposal Bill 2005
Miscellaneous Part 8
s. 33
(4) A document signed under subsection (3) has effect as if it were
signed by the owner of the property.
33. Title to property disposed of under this Act
(1) If under this Act --
5 (a) a chief officer, in good faith, releases any property to a
person who found the property; or
(b) any property is sold in good faith to a person,
and the person takes the property in good faith, the person
receives good title to the property against every other person
10 including its true owner.
(2) If under this Act --
(a) any property is released in good faith to a person; or
(b) any property is sold in good faith to a person,
no person may recover from the State any compensation in
15 respect of any estate or interest that the person had in the
property before it was released or sold.
34. Officials protected from personal liability
(1) In this section --
"official" means the chief officer of a prescribed agency or a
20 delegate of such an officer.
(2) In this section, a reference to the doing of anything includes a
reference to an omission to do anything.
(3) An action in tort does not lie against an official or the State for
anything that the official has done, in good faith, in the
25 performance or purported performance of a function under this
Act.
(4) The protection given by subsection (3) applies even though the
thing done as described in that subsection may have been
capable of being done whether or not this Act had been enacted.
page 27
Criminal and Found Property Disposal Bill 2005
Part 8 Miscellaneous
s. 35
35. Regulations
The Governor may make regulations prescribing all matters that
are required or permitted by this Act to be prescribed, or are
necessary or convenient to be prescribed for giving effect to the
5 purposes of this Act.
page 28
Criminal and Found Property Disposal Bill 2005
Defined Terms
Defined Terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined Term Provision(s)
aggrieved person ........................................................................................12(1)
appropriate court .............................................................................................. 3
chief officer...................................................................................................... 3
claim................................................................................................................ 3
criminal investigation ....................................................................................... 3
deal with .......................................................................................................... 7
forfeited property ............................................................................................. 3
found property.................................................................................................. 3
government agency........................................................................................... 3
held property.................................................................................................... 3
holding expenses .............................................................................................. 3
interest ............................................................................................................. 3
net proceeds ..................................................................................................... 3
official .......................................................................................................34(1)
partly prohibited property ................................................................................. 3
person entitled.................................................................................................. 3
prescribed......................................................................................................... 3
prescribed agency............................................................................................. 3
seized property................................................................................................. 3
State................................................................................................................. 3
unregulated property......................................................................................... 3
wholly prohibited property ............................................................................... 3
page 29
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