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Criminal Assets Recovery Bill 2001

Part 3—Confiscation

24  Making of assets forfeiture order

             (1)  If a restraining order is in force under Part 2, the DPP may apply to the court for an order forfeiting to, and vesting in, the Crown all or any of the interests in property that are subject to the restraining order when the assets forfeiture order takes effect.

             (2)  The court to which the application is made must make an assets forfeiture order if the court finds it to be more probable than not that the person whose suspected serious crime related activity, or serious crime related activities, formed the basis of the restraining order was, at any time not more than 6 years before the making of the application for the assets forfeiture order, engaged in a serious crime related activity involving an offence punishable by imprisonment for 5 years or more.

             (3)  A finding of the court for the purposes of subsection (2) need not be based on a finding as to the commission of a particular offence and can be based on a finding that some offence or other constituting a serious crime related activity and punishable by imprisonment for 5 years or more was committed.

             (4)  When an assets forfeiture order is made it must be made so as to apply to specified interests in property.

             (5)  The reference in subsection (2) to a period of 6 years includes a reference to a period that began before the commencement of this section.

             (6)  The raising of a doubt as to whether a person engaged in a serious crime related activity is not of itself sufficient to avoid a finding by the court under subsection (2).

             (7)  The quashing or setting aside of a conviction for a serious crime related activity does not affect the validity of an assets forfeiture order that was made before or after the conviction was quashed or set aside and was based on the serious crime related activity.

             (8)  The making of an assets forfeiture order does not prevent the making of a proceeds assessment order under Division 2 which assesses the value of the proceeds of, or is based on, the serious crime related activity on which the assets forfeiture order was based.

             (9)  Notice of an application under this section is to be given to a person to whom the application relates and the person may appear, and adduce evidence, at the hearing of the application.

           (10)  The absence of a person entitled to be given notice of an application for an assets forfeiture order does not prevent the court from making the order.

25  Effect of assets forfeiture order

             (1)  On an assets forfeiture order taking effect in relation to an interest in property:

                     (a)  the interest is forfeited to the Crown and vests in the Official Trustee on behalf of the Crown, and

                     (b)  if the person forfeiting the interest was in possession, or was entitled to possession, of the property, the Official Trustee may take possession of the property on behalf of the Crown.

             (2)  An interest forfeited under subsection (1) is to be disposed of by the Official Trustee in accordance with the directions of the Minister for Finance and the proceeds are to be paid to the Minister for Finance and credited to the Proceeds Account.

             (3)  The Minister for Finance may delegate the power to give directions for the purposes of subsection (2).

             (4)  A court may, when it makes an assets forfeiture order or at any later time, make any ancillary orders that the court considers appropriate. For example, the court may make ancillary orders for and with respect to facilitating the transfer to the Crown of interests in property forfeited to the Crown under such an order.

26  Dealing with forfeited property prohibited

             (1)  A person must not dispose of or otherwise deal with an interest in property that is the subject of an assets forfeiture order.

             (2)  A person who contravenes subsection (1) is guilty of an offence and punishable, on conviction, by a fine equivalent to the value of the interest concerned (as determined by the court in which the person is convicted) or by imprisonment for a period not exceeding 2 years, or both, unless it is proved that the person had no notice that the interest was subject to the order concerned and no reason to suspect that it was.

             (3)  This section does not prevent a person from being dealt with for a contempt of the court which made the assets forfeiture order, but a person may not, for the action, be punished both for a contempt of that court and under this section.

             (4)  If an interest in property is disposed of or otherwise dealt with in contravention of this section and the disposition or dealing was either not for sufficient consideration or not in favour of a person who acted in good faith, the disposition or dealing is void.

             (5)  It is not a contravention of this section if an interest in property is disposed of or dealt with under the authority of this Act.

27  Relief from hardship—spouses and dependants

             (1)  If the court making an assets forfeiture order is satisfied that the order will operate to cause hardship to any dependant of the person who will forfeit an interest in property under the order, the court:

                     (a)  may order that the dependant is entitled to be paid a specified amount out of the proceeds of sale of the interest, being an amount that the court thinks is necessary to prevent hardship to the dependant, and

                     (b)  may make ancillary orders for the purpose of ensuring the proper application of an amount so paid to a person who is under 18 years of age.

             (2)  The court is not to make an order under this section in favour of the dependant of a person whose serious crime related activity formed the basis for the assets forfeiture order concerned unless the court is satisfied that the dependant had no part in any serious crime related activities of the person.

             (3)  Subsection (2) does not apply if the dependant concerned is under 14 years of age.

             (4)  In this section:

                   dependant , in relation to a person, means:

                     (a)  a spouse or a de facto partner of the person, or

                     (b)  a child of the person, or a member of the household of the person, dependent for support on the person.

28  Exclusion of property from restraining order and assets forfeiture order

             (1)  If an assets forfeiture order:

                     (a)  has been applied for but not made—a person whose interest in property might be subject to the order if made, or

                     (b)  has been made—a person whose interest in property was forfeited by the order,

                   may apply to a court for an order (in this section called an exclusion order ) excluding the interest from the operation of the assets forfeiture order or any relevant restraining order.

             (2)  The court must not make the exclusion order applied for unless it is proved that it is more probable than not that the interest in property to which the application relates is not illegally acquired property.

             (3)  An exclusion order must declare the nature and extent of the interest in property to which it relates and:

                     (a)  if the interest has been forfeited to the Crown, but not disposed of—must require the Crown to vest the interest in the claimant, or

                     (b)  if the interest has been disposed of—must require payment by the Crown to the claimant of an amount declared by the court to be the value, as at the date of the order, of the former interest of the claimant.

             (4)  After an assets forfeiture order has been made, an application for an exclusion order may not be made by a person:

                     (a)  if the person was given notice of the proceedings that led to the relevant restraining order or assets forfeiture order—unless it is made within 6 months after the assets forfeiture order took effect and leave to apply has been granted by a court, or

                     (b)  in any other case—unless it is made within 6 months after the assets forfeiture order took effect or a court has granted leave to apply after that time.

             (5)  Notice of an application for an exclusion order is to be given to the DPP and any other person required by the regulations to be given notice and a person entitled to be given notice may appear, and adduce evidence, at the hearing of the application.

             (6)  The applicant for an exclusion order must give the DPP notice of the grounds on which the exclusion order is sought.

             (7)  If the DPP proposes to contest an application for an exclusion order, it must give the applicant notice of the grounds on which the application is to be contested.

                   In such a case, the DPP is not required to give the applicant notice of those grounds, and the application must not be heard, until the DPP has had a reasonable opportunity to conduct an examination of the applicant under section 12.

29  Exclusion of the value of innocent interests from assets forfeiture order

             (1)  If it is proved that it is more probable than not that a specified proportion of the value of an interest in property that has been forfeited under an assets forfeiture order is not attributable to the proceeds of an illegal activity, a court may:

                     (a)  make a declaration to that effect, and

                     (b)  order that the person who has forfeited the interest is entitled to be paid the proportion of the proceeds of sale of the interest that is specified in the declaration.

             (2)  Any such declaration is to be made on the basis of the extent to which the interest in property concerned was not, when it first became illegally acquired property, acquired using the proceeds of an illegal activity.

             (3)  The court may make a declaration and order under this section in relation to an interest in property on the application of the person whose interest it was when forfeited under an assets forfeiture order.

             (4)  After an assets forfeiture order has been made, an application for an order under this section may not be made by a person:

                     (a)  if the person was given notice of the proceedings that led to the assets forfeiture order—unless it is made within 6 months after the assets forfeiture order took effect and leave to apply has been granted by the court, or

                     (b)  in any other case—unless it is made within 6 months after the assets forfeiture order took effect or the court has granted leave to apply after that time.

             (5)  Notice of an application for an order under this section is to be given to the DPP and any other person required by the regulations to be given notice and a person entitled to be given notice may appear, and adduce evidence, at the hearing of the application.

             (6)  The applicant for an order under this section must give the DPP notice of the grounds on which the order is sought.

             (7)  If the DPP proposes to contest an application for an order under this section it must give the applicant notice of the grounds on which the application is to be contested.

30  Making of proceeds assessment order

             (1)  The DPP may apply to the a court for a proceeds assessment order requiring a person to pay to the Commonwealth or an amount assessed by the court as the value of the proceeds derived from an illegal activity, or illegal activities, of the person that took place not more than 6 years before the making of the application for the order, whether or not any such activity is an activity on which the application is based as required by subsection (2).

             (2)  The court to which the application is made must make a proceeds assessment order if the court finds it to be more probable than not that the person against whom the order is sought was, at any time not more than 6 years before the making of the application for the order, engaged in a serious crime related activity involving an offence punishable by imprisonment for 5 years or more.

             (3)  A finding of the court for the purposes of subsection (2) need not be based on a finding as to the commission of a particular offence and can be based on a finding that some offence or other constituting a serious crime related activity and punishable by imprisonment for 5 years or more was committed.

             (4)  The references in subsections (1) and (2) to a period of 6 years include a reference to a period that began before the commencement of this section.

             (5)  The quashing or setting aside of a conviction for a serious crime related activity does not affect the validity of a proceeds assessment order.

             (6)  The making of a proceeds assessment order does not prevent the making under Division 1 of an assets forfeiture order based on the serious crime related activity, or on all or any of the serious crime related activities, in relation to which the proceeds assessment order is made.

             (7)  The amount a person is required to pay under a proceeds assessment order is a debt payable by the person to the Crown on the making of the order and is recoverable as such.

             (8)  If an order under this section is made against a dead person, subsection (7) has effect before final distribution of the estate as if the person had died the day after the making of the order.

             (9)  The net amount recovered under a proceeds assessment order is to be paid to the Minister for Finance and credited to the Proceeds Account.

           (10)  Notice of an application under this section is to be given to the person against whom the order is sought and any other person required by the regulations to be given notice.

           (11)  The absence of a person entitled to be given notice of a proceeds assessment order does not prevent a court from making the order.

           (12)  A court may, when it makes a proceeds assessment order at any later time, make any ancillary orders that the Court considers appropriate.

31  Assessment of proceeds of serious crime related activity

             (1)  For the purpose of making an assessment under section 30 in relation to an illegal activity, or illegal activities, of a person (in this section called the defendant ) the court in making the assessment is to have regard to the following matters:

                     (a)  the money, or the value of any interest in property other than money, directly or indirectly acquired by:

                              (i)  the defendant, or

                             (ii)  another person at the request, or by the direction, of the defendant,

                            because of the illegal activity or activities,

                     (b)  the value of any service, benefit or advantage provided for:

                              (i)  the defendant, or

                             (ii)  another person at the request, or by the direction, of the defendant,

                            because of the illegal activity or activities,

                     (c)  the market value, at the time of the illegal activity or of each illegal activity, of a plant or drug similar, or substantially similar, to any involved in the illegal activity or each illegal activity, and the amount that was, or the range of amounts that were, ordinarily paid for an act similar, or substantially similar, to the illegal activity or each illegal activity,

                     (d)  the value of the defendant's property before and after the illegal activity or each illegal activity,

                     (e)  the defendant's income and expenditure before and after the illegal activity or activities.

             (2)  If evidence is given at the hearing of an application for a proceeds assessment order that the value of the defendant's property after an illegal activity or illegal activities exceeded the value of the defendant's property before the activity or activities, the court is to treat the excess as proceeds derived by the defendant from the activity or activities, except to the extent (if any) that the court is satisfied the excess was due to causes unrelated to an illegal activity or activities.

             (3)  If evidence is given at the hearing of an application for a proceeds assessment order of the amount of the defendant's expenditure during the period of 6 years before the making of the application for the order, the court is to treat any such amount as proceeds derived by the defendant from an illegal activity or activities, except to the extent (if any) that the court is satisfied the expenditure was funded from income, or money from other sources, unrelated to an illegal activity or activities.

             (4)  The court is not to take expenditure into account under subsection (3) to the extent that the Court is satisfied that it resulted in the acquisition of property the value of which is taken into account under subsection (2).

             (5)  In making an assessment as provided by this section, none of the following amounts are to be subtracted:

                     (a)  expenses or outgoings incurred by the defendant in relation to the illegal activity or activities,

Note.   For example, in the case of an illegal activity involving the sale of drugs, in determining the value of the proceeds derived by the defendant from the sale of drugs there is to be no reduction on account of any expenditure by the defendant in acquiring the drugs.

                     (b)  the value of any proceeds derived as agent for or otherwise on behalf of some other person (whether or not any of the proceeds are received by that other person).

Note.   For example, where the defendant is paid money for drugs in the course of a ``controlled buy'' but was acting merely as an agent or messenger for some other person (and gives the money to the other person), in calculating the proceeds derived by the defendant the amount given to the other person is not to be subtracted and the full amount is considered to have been derived by the defendant.

             (6)  This section applies to, and in relation to:

                     (a)  property that comes into the possession, or under the effective control, of a person either within or outside Australia, and

                     (b)  proceeds acquired either within or outside Australia in relation to an illegal activity.

             (7)  Despite any rule of law, or any practice, relating to hearsay evidence, the court may, for the purposes of this section, receive evidence of the opinion of:

                     (a)  a member of the police force of a State or Territoryor

                     (b)  an AFP member, or

                     (c)  an officer of Customs within the meaning of the Customs Act 1901 , or

                     (d)  a member of staff of the office of the DPP,

                   who is experienced in the investigation of illegal activities involving plants or drugs, being an opinion with respect to:

                     (e)  the amount that was the market value at a particular time of a particular kind of plant or drug, or

                      (f)  the amount, or range of amounts, ordinarily paid at a particular time for the doing of anything in relation to a particular kind of plant or drug.

33  Relief from Hardship - spouse and dependants

 

             (1)  If the court making the order is satisfied that a proceeds assessment order will operate to cause hardship to any dependent of the person who is the debtor pursuant to  section 30, the court:

                     (a)  may order that the dependant is entitled to be paid a specified amount out of the amount paid discharging the debt pursuant to  section 30, being an amount that the court thinks is necessary to prevent hardship to a dependent, and

                     (b)  may make ancillary orders for the purpose of ensuring the proper application of an amount so paid to a person who is under 18 years of age.

             (2)  The court is not to make an order under this section in favour of the dependant of a person whose illegal activity formed the basis for the proceeds assessment order concerned unless the court is satisfied that the dependant had no part in any of the illegal activity of the person.

             (3)  Subsection (2) does not apply if the dependant concerned is under 14 years of age.

             (4)  In this section:

                   dependant , in relation to a person, means:

                     (a)  a spouse or a de facto partner of the person, or

                     (b)  a child of the person, or a member of the household of the person, dependent for support on the person.

33  Enforcement of order against property under effective control

             (1)  On the application of the DPP, a court must, if of the opinion that an interest in property is subject to the effective control of a person in relation to whom the court has made a proceeds assessment order, make an order declaring that the interest is available to satisfy the order to the extent that other property is not readily available for that purpose.

             (2)  If the court declares that an interest in property is available to satisfy a proceeds assessment order, the proceeds assessment order may be enforced against the property to the extent specified in the declaration.

             (3)  If application is made for an order under this section:

                     (a)  the DPP must give notice of the application to the person against whose interest in property the order is sought and to any other person whom the DPP has reason to believe may also have an interest in the property to which the application relates, and

                     (b)  each person to whom notice is given, and any other person who claims an interest in the property, may appear, and adduce evidence, at the hearing of the application.

             (4)  Despite section 7, an interest in property is not available to satisfy a proceeds assessment order made against a person who has effective control of the interest unless the court makes a declaration under this section in relation to the interest.

34  Official Trustee may discharge proceeds assessment order

             (1)  If:

                     (a)  the Official Trustee has, under a restraining order, taken control of an interest in property, and

                     (b)  a proceeds assessment order has been made against the person entitled to the interest,

                   a court may, on application by the Official Trustee, make an order (in this section referred to as the later order ) directing the Official Trustee to pay to the Minister for Finance an amount sufficient to discharge the debt created by section 30 arising under the proceeds assessment order.

             (2)  For the purpose of enabling the Official Trustee to comply with the later order, the court may, by that order or by a subsequent order:

                     (a)  direct the Official Trustee to sell or otherwise dispose of a specified interest in property under the control of the Official Trustee, and

                     (b)  appoint an officer of the court or any other person to execute any deed or instrument in the name of the person entitled to the interest and to do all acts and things necessary to give validity and operation to the deed or instrument.

             (3)  The execution of the deed or instrument by the person so appointed has the same force and validity as it would have if it had been executed by the person who was entitled to the interest to which it relates.

             (4)  As soon as practicable after the making of the later order, the Official Trustee:

                     (a)  is to apply the money which has come into the Official Trustee's possession or under the Official Trustee's control because of the sale or other disposition specified in the later order, or the subsequent order, or otherwise in the course of the performance of the Official Trustee's duties in respect of the interests in property to which the restraining order relates, in payment of:

                              (i)  the fees payable in connection with, and

                             (ii)  the expenses incurred by the Official Trustee in or in connection with,

                            the performance of the duties imposed on the Official Trustee under the restraining order, including the expenses incurred by the Official Trustee in or in connection with the sale or other disposition of any of the interests in property to which the restraining order relates, and

                     (b)  is to pay the rest of the money as provided by subsection (5).

             (5)  If the money to which subsection (4) (b) applies exceeds the amount required to discharge the debt arising under the proceeds assessment order, the Official Trustee is to use the money to discharge the debt by payment of the appropriate amount to the Minister for Finance and, if the property sold or disposed of:

                     (a)  was also the subject of an assets forfeiture order—is to pay the balance of the money to the Minister for Finance, or

                     (b)  was not the subject of an assets forfeiture order—is to pay the balance of the money to the person against whom the proceeds assessment order was made.

             (6)  Money paid to the Minister for Finance under subsection (5) is to be credited to the Proceeds Account.

             (7)  If the Official Trustee pays, in accordance with the later order, money to the Minister for Finance in respect of the liability of a person under a proceeds assessment order, the liability of the person under the proceeds assessment order is discharged to the extent of the payment.

35  Charge on property

             (1)  If a court makes a proceeds assessment order against a person, all the interests of the person in property are, while the assessed amount remains unpaid, charged in favour of the Crown to the extent necessary to secure payment of the assessed amount.

             (2)  A charge created by subsection (1) on the making of a proceeds assessment order ceases to have effect:

                     (a)  if the proceeds assessment order is discharged on the hearing of an appeal against the making of the order, or

                     (b)  on payment to the Minister for Finance of the assessed amount, or

                     (c)  on the bankruptcy of the person subject to the order, or

                     (d)  on the sale or other disposition of the interest charged under the authority of this Act except under section 10 (8) (b) or 14, or

                     (e)  on the sale of the interest charged to a purchaser for sufficient consideration who, at the time of purchase, had no notice of the charge,

                   whichever first occurs.

             (3)  A charge that, on the making of a proceeds assessment order, is created by subsection (1) over an interest in property:

                     (a)  is subject to every encumbrance on the property that came into existence before the charge and that would, apart from this paragraph, have priority over the charge, and

                     (b)  has priority over all other encumbrances, and

                     (c)  subject to subsection (2), is not affected by any change of ownership of the interest charged.

             (4)  If a charge is created by subsection (1) on an interest in property of a particular kind and the provisions of any law of the Commonwealth or of a State or Territory, provide for the registration of title to, interests in, or charges over, property of that kind, the Official Trustee or an appropriate officer may cause the charge so created to be registered under the provisions of that law.