(b) to provide for the forfeiture of property used in or in connection with the commission of such offences; and

(2) The objects of this Act include the objects of:

(a) providing for the enforcement in the Territories of forfeiture orders, pecuniary penalty orders and restraining orders made in respect of offences against the laws of the States;

(b) facilitating the enforcement in Australia, pursuant to the Mutual Assistance Act, of forfeiture orders, pecuniary penalty orders and restraining orders made in respect of foreign serious offences; and

(c) assisting foreign countries, pursuant to the Mutual Assistance Act, to trace the proceeds of, benefits derived from and property used in or in connection with the commission of foreign serious offences.

Interpretation

4. (1) In this Act, unless the contrary intention appears:

“AFP member” means a member or special member of the Australian Federal Police;

“account” means any facility or arrangement through which a financial institution accepts deposits or allows withdrawals and includes a facility or arrangement for:

(a) a fixed term deposit; and

(b) a safety deposit box;

“appropriate officer” means the DPP or a person in a class of persons declared by the regulations to be within this definition;

“approved” means approved by the Minister in writing for the purposes of the provision in which the term occurs;

“Australia”, when used in a geographical sense, includes the external Territories;

“bank” means:

(a) the Reserve Bank of Australia;

(b) a bank within the meaning of the Banking Act 1959; or

“Bankruptcy Act” means the Bankruptcy Act 1966;

“benefit” includes service or advantage;

“building society” means a society registered or incorporated as a building society, co-operative housing society or similar society under a law relating to such societies that is in force in a State or Territory;

“Commissioner” means the Commissioner of the Australian Federal Police;

“confiscation order” means a forfeiture order or a pecuniary penalty order;

“corresponding law” means a law of a State that is declared by the regulations to be a law that corresponds to this Act;

“credit union” means a society or other body of persons that is registered or incorporated as a credit union or a credit society under a law in force in a State or Territory relating to credit unions or credit societies;

“Crimes Act” means the Crimes Act 1914;

“criminal investigation”, in relation to a foreign serious offence, has the same meaning as in the Mutual Assistance Act;

“criminal proceeding”, in relation to a foreign serious offence, has the same meaning as in the Mutual Assistance Act;

“Customs Act” means the Customs Act 1901;

“Customs officer” means an officer of Customs within the meaning of the Customs Act;

“DPP” means the Director of Public Prosecutions;

“encumbrance”, in relation to property, includes any interest, mortgage, charge, right, claim or demand in respect of the property;

“facsimile copy” means a copy obtained by facsimile transmission;

“financial institution” means:

(a) a bank;

(b) a building society;

(d) a body corporate that is, or that, if it had been incorporated in Australia, would be, a financial corporation within the meaning of paragraph 51 (xx) of the Constitution;

“fixed term deposit” means an interest bearing deposit lodged for a fixed period;

“foreign forfeiture order” has the same meaning as in the Mutual Assistance Act;

“foreign pecuniary penalty order” has the same meaning as in the Mutual Assistance Act;

“foreign restraining order” has the same meaning as in the Mutual Assistance Act;

“foreign serious offence” has the same meaning as in the Mutual Assistance Act;

“forfeiture order” means an order under subsection 19 (1);

“indictable offence” means an offence against a law of the Commonwealth, or a law of a Territory, that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence);

“interest”, in relation to property, means:

(a) a legal or equitable estate or interest in the property; or

(b) a right, power or privilege in connection with the property;

whether present or future and whether vested or contingent;

“interstate forfeiture order” means an order that is made under a corresponding law and is of a kind declared by the regulations to be within this definition;

“interstate indictable offence” means an offence against a law of a State, being an offence in relation to which an interstate forfeiture order or an interstate pecuniary penalty order may be made under a corresponding law of that State;

“interstate pecuniary penalty order” means an order that is made under a corresponding law and is of a kind declared by the regulations to be within this definition;

“interstate restraining order” means an order that is made under a corresponding law and is of a kind declared by the regulations to be within this definition;

“law enforcement authority” means the Australian Federal Police or the National Crime Authority;

“magistrate” includes a justice of the peace;

“magistrate’s court” means a court of summary jurisdiction constituted by a Stipendiary Magistrate, a Police Magistrate or a Special Magistrate;

“Mutual Assistance Act” means the Mutual Assistance in Criminal Matters Act 1987;

“narcotic substance” means:

(a) a narcotic substance within the meaning of the Customs Act; or

(b) a substance declared by the regulations to be a substance to which this definition applies;

“Official Trustee” means the Official Trustee in Bankruptcy;

“ordinary indictable offence” means an indictable offence that is not a serious offence;

“pecuniary penalty order” means an order under subsection 26 (1);

“penalty amount”, in relation to a pecuniary penalty order against a person, means the amount that the person is liable to pay the Commonwealth under the order;

“petition” means a petition under the Bankruptcy Act;

“police officer” means:

(a) an AFP member; or

(b) a member of the police force of a State or Territory;

“premises” includes:

(a) a structure, building, aircraft, vehicle or vessel;

(b) a place (whether enclosed or built upon or not); and

“prescribed time”, in relation to a warrant issued under Division 1 of Part III in relation to property, means:

(a) where an information is laid in respect of the relevant offence either before the warrant is issued or within 48 hours after the warrant is issued—the day that is one month after the date of the issue of the warrant; or

(b) in any other case—the time that is 48 hours after the time of the issue of the warrant;

“proceeds”, in relation to an offence, means any property that is derived or realised, directly or indirectly, by any person from the commission of the offence;

“proceeds of crime” means:

(a) proceeds of an indictable offence; or

(b) any property that is derived or realised, directly or indirectly, by any person from acts or omissions that:

(i) occurred outside Australia;

(ii) related to a narcotic substance; and

(iii) would, if they had occurred in Australia, have constituted an indictable offence or a State indictable offence;

“production order” means an order under section 66;

“property” means real or personal property of every description, whether situated in Australia or elsewhere and whether tangible or intangible and includes an interest in any such real or personal property;

“property-tracking document”, in relation to an offence, means:

(a) a document relevant to:

(i) identifying, locating or quantifying property of a person who committed the offence; or

(ii) identifying or locating any document necessary for the transfer of property of a person who committed the offence; or

(b) a document relevant to:

(i) identifying, locating or quantifying tainted property in relation to the offence; or

(ii) identifying or locating any document necessary for the transfer of tainted property in relation to the offence;

“registrable property” means property title to which is passed by registration on a register kept pursuant to a provision of any law of the Commonwealth or of a State or Territory;

“relevant application period”, in relation to a person’s conviction of an indictable offence, means the period of 6 months after:

(a) where the person is to be taken to have been convicted of the offence by reason of paragraph 5 (1) (a)—the day on which the person was convicted of the offence;

(b) where the person is to be taken to have been convicted of the offence by reason of paragraph 5 (1) (b)—the day on which the person was discharged without conviction;

(c) where the person is to be taken to have been convicted of the offence by reason of paragraph 5 (1) (c)—the day on which the court took the offence into account in passing sentence for the other offence referred to in that paragraph; or

(d) where the person is to be taken to have been convicted of the offence by reason of paragraph 5 (1) (d)—the day on which the person is to be taken to have absconded in connection with the offence;

“relevant offence”, in relation to tainted property, means an offence by reason of the commission of which the property is tainted property;

“relevant Supreme Court” means:

(a) in relation to property seized under a warrant issued under Division 1 of Part III—the Supreme Court of the State or Territory in which an information in respect of the relevant offence has been, or is to be, laid;

(b) in relation to property seized under section 38—the Supreme Court of the State or Territory in which an information in respect of the relevant offence has been laid; or

(c) in relation to a person’s conviction of an offence or the charging, or proposed charging, of a person with an offence—the Supreme Court of the State or Territory in which the person has been convicted or has been, or is to be, charged with the offence;

“restraining order” means an order under subsection 43 (2);

“State” includes the Northern Territory;

“State indictable offence” means an offence against a law of a State that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence);

“tainted property”, in relation to an offence, means:

(a) property used in, or in connection with, the commission of the offence; or

(b) proceeds of the offence;

and when used without reference to a particular offence means tainted property in relation to an indictable offence;

“Territory” does not include the Northern Territory;

“unlawful activity” means an act or omission that constitutes an offence against a law in force in the Commonwealth, a State, a Territory or a foreign country.

(2) A reference in this Act to a person being charged with an offence is a reference to an information being laid against the person for the offence whether or not:

(a) a summons to require the attendance of the person to answer the information has been issued; or

(b) a warrant for the apprehension of the person has been issued.

(3) A reference in this Act to a benefit derived by a person includes a reference to a benefit derived by another person at the request or direction of the first person.

(4) A reference in this Act to the property of a person includes a reference to property in respect of which the person has the beneficial interest.

(5) A reference in this Act to a criminal offence is a reference to an offence against a law of the Commonwealth or of a Territory.

(6) Without prejudice to its effect by virtue of subsection (5), this Act has effect as if a reference in this Act to a criminal offence included a reference to an offence against a law of a State.

(7) A reference in this Act to acquiring property, or an interest in property, for sufficient consideration is a reference to acquiring the property or the interest for a consideration that is sufficient and that, having regard solely to commercial considerations, reflects the value of the property or the interest.

Meaning of “conviction” etc. of offence

5. (1) For the purposes of this Act, a person shall be taken to be convicted of an offence if:

(a) the person is convicted, whether summarily or on indictment, of the offence;

(b) the person is charged with, and found guilty of, the offence but is discharged without conviction;

(c) a court, with the consent of the person, takes the offence, of which the person has not been found guilty, into account in passing sentence on the person for another offence; or

(d) the person absconds in connection with the offence.

(2) For the purposes of this Act, a person’s conviction of an offence shall be taken to be quashed:

(a) where the person is to be taken to have been convicted of the offence by reason of paragraph (1) (a)—if the conviction is quashed or set aside;

(b) where the person is to be taken to have been convicted of the offence by reason of paragraph (1) (b)—if the finding of guilt is quashed or set aside;

(c) where the person is to be taken to have been convicted of the offence by reason of paragraph (1) (c)—if either of the following events occur:

(i) the person’s conviction of the other offence referred to in that paragraph is quashed or set aside;

(ii) the decision of the court to take the offence into account in passing sentence for that other offence is quashed or set aside; or

(d) where the person is to be taken to have been convicted of the offence by reason of paragraph (1) (d)—if, after the person is brought before a court in respect of the offence, the person is discharged in respect of the offence or a conviction of the person for the offence is quashed or set aside.

(3) For the purposes of this Act, a person shall be taken to have been convicted of an offence in a particular State or Territory if:

(a) where the person is to be taken to have been convicted of the offence by reason of paragraph (1) (a)—the person was convicted of the offence in a court in that State or Territory;

(b) where the person is to be taken to have been convicted of the offence by reason of paragraph (1) (b)—the person was discharged without conviction by a court in that State or Territory;

(c) where the person is to be taken to have been convicted of the offence by reason of paragraph (1) (c)—the offence was taken into account by a court in that State or Territory in passing sentence on the person for the other offence referred to in that paragraph; or

(d) where the person is to be taken to have been convicted of the offence by reason of paragraph (1) (d)—the information alleging the commission of the offence by the person was laid in that State or Territory.

(4) For the purposes of this Act, where a person is to be taken to have been convicted of an offence in a particular State or Territory by reason of paragraph (3) (d), the person shall be taken to have been so convicted before the Supreme Court of that State or Territory.

(5) A reference in this Act, in relation to a person’s conviction of an offence, to the commission of the offence shall, where the person is to be taken to have been convicted of the offence by reason of paragraph (1) (d), be read as a reference to the alleged commission of the offence by the person.

(6) This section does not apply to a foreign serious offence.

Meaning of “absconding”

6. For the purposes of this Act (except section 17), a person shall be taken to abscond in connection with an offence if and only if:

(a) an information is laid alleging the commission of the offence by the person;

(b) a warrant for the arrest of the person is issued in relation to that information; and

(i) the person dies without the warrant being executed;

(ii) at the end of the period of 6 months commencing on the day on which the warrant is issued:

(a) the person cannot be found; or

(b) the person is, for any other reason, not amenable to justice and, if the person is outside Australia, extradition proceedings are not on foot;

(iii) at the end of the period of 6 months commencing on the day on which the warrant is issued:

(a) the person is, by reason of being outside Australia, not amenable to justice; and

(b) extradition proceedings are on foot;

and subsequently those proceedings terminate without an order for the person’s extradition being made.

Meaning of “serious offence”

7. (1) In this Act:

“serious offence” means:

(a) a serious narcotics offence;

(b) an organised fraud offence; or

and includes an ancillary offence in respect of an offence referred to in paragraph (a), (b) or (c).

(2) In this section:

“ancillary offence”, in relation to an offence (in this definition called the “main offence”), means:

(a) an offence of conspiring to commit the main offence;

(b) an offence of aiding, abetting, counselling or procuring, or being in any way knowingly concerned in, the commission of the main offence;

(c) an offence of receiving or assisting another person in order to enable the person to escape punishment for, or to dispose of the proceeds of, the main offence; or

(d) an offence of attempting to commit the main offence;

“money laundering offence” means an offence against section 81;

“organised fraud offence” means an offence against section 83;

“possession” includes possession for supply;

“production” includes growing and manufacture;

“serious narcotics offence” means an offence:

(a) constituted by the production, possession, supply, importation or export of a narcotic substance; and

(b) involving a quantity of the narcotic substance that is equal to or greater than the trafficable quantity applicable to the narcotic substance;

“trafficable quantity”, in relation to a narcotic substance, means:

(a) if paragraph (b) does not apply—a trafficable quantity of the substance within the meaning of the Customs Act; or

(b) if the law against which the offence is committed is not the Customs Act and that law includes references to trafficable quantity—a trafficable quantity of the substance within the meaning of that law.

Related offences

8. For the purposes of this Act, 2 offences are related to one another if the elements of the 2 offences are substantially the same acts or omissions.

Meaning of “dealing with property”

9. For the purposes of this Act, dealing with property of a person includes:

(a) if a debt is owed to that person—making a payment to any person in reduction of the amount of the debt;

(b) removing the property from Australia; and

Appropriate court in relation to indictable offence

10. (1) Where a person is convicted of an offence before the Supreme Court of a State or Territory, that Supreme Court is the appropriate court in relation to the conviction.

(2) Where a person is convicted of an offence before any other court of a State or Territory, the court before which the person was convicted and the Supreme Court of that State or Territory are both appropriate courts in relation to the conviction.

Act to bind Crown

11. (1) This Act binds the Crown in right of the Commonwealth, of each of the States, of the Northern Territory and of Norfolk Island.

(2) Nothing in this Act renders the Crown in right of the Commonwealth, of a State, of the Northern Territory or of Norfolk Island liable to be prosecuted for an offence.

Act to apply both within and outside Australia

12. This Act applies throughout the whole of Australia and also applies outside Australia.

Application

13. (1) Subject to subsection (2), Parts II and III (other than section 59) do not apply to a person’s conviction of an offence if the person was convicted of the offence before the commencement of this Act.

(2) Subsection (1) does not apply in relation to interstate forfeiture orders, interstate pecuniary penalty orders, interstate restraining orders, foreign forfeiture orders, foreign pecuniary penalty orders or foreign restraining orders.

(3) Subject to subsection (1) this Act applies to:

(a) an offence committed, or believed to have been committed, at any time (whether before or after the commencement of this Act); and

(b) a person’s conviction at any time of an offence (whether before or after the commencement of this Act).

PART II—CONFISCATION

Division 1—Application for confiscation order

Application for confiscation order

14. (1) Where a person is convicted of an indictable offence, the DPP may, subject to subsections (2), (3) and (4) apply to an appropriate court for one or both of the following orders:

(a) a forfeiture order against property that is tainted property in respect of the offence;

(b) a pecuniary penalty order against the person in respect of benefits derived by the person from the commission of the offence.

(2) The DPP is not empowered to make an application after the end of the relevant application period in relation to the conviction.

(3) The DPP is not empowered to make an application to a court under subsection (1) for a forfeiture order against property in respect of a person’s conviction of an offence if:

(a) an application has previously been made:

(i) under that subsection;

(ii) under another law of the Commonwealth; or

(iii) under a law of a Territory;

for forfeiture or condemnation of the property in respect of the offence; and

(b) the application has been finally determined on the merits; except with the leave of the court.

(4) The DPP is not empowered to make an application to a court under subsection (1) for a pecuniary penalty order against a person in respect of benefits derived by the person from the commission of an offence if:

(a) an application has previously been made:

(i) under that subsection;

(ii) under another law of the Commonwealth; or

(iii) under a law of a Territory;

for a pecuniary penalty in respect of those benefits derived by the person from the commission of the offence; and

(b) the application has been finally determined on the merits;

except with the leave of the court.

(5) The court shall not grant leave under subsection (3) or (4) unless satisfied that:

(a) the tainted property, or the benefit, to which the new application relates was identified only after the first application was determined;

(b) necessary evidence became available only after the first application was determined; or

(6) An application may be made under this section in relation to one or more indictable offences.

(7) An application may be made under this section for a pecuniary penalty order in respect of an offence even if section 30 applies to the offence.

Notice of application

15. (1) Where the DPP applies for a forfeiture order against property in respect of a person’s conviction of an offence:

(a) the DPP shall give written notice of the application to the person and to any other person the DPP has reason to believe may have an interest in the property;

(b) the person, and any other person who claims an interest in the property, may appear and adduce evidence at the hearing of the application; and

(c) the court may, at any time before the final determination of the application, direct the DPP to give or publish notice of the application to a specified person or class of persons, in the manner and within the time that the court considers appropriate.

(2) Where the DPP applies for a pecuniary penalty order against a person:

(a) the DPP shall give the person written notice of the application; and

(b) the person may appear and adduce evidence at the hearing of the application.

Amendment of application

16. (1) Subject to subsection (2), where the DPP applies for a confiscation order, the court hearing the application may amend the application:

(a) on application by the DPP; or

(b) with the consent of the DPP.

(2) The court shall not amend the application so as to:

(a) include additional property in an application for a forfeiture order; or

(b) include an additional benefit in an application for a pecuniary penalty order;

unless the court is satisfied that:

(d) necessary evidence became available only after the application was originally made.

(3) Where:

(a) the DPP applies to amend an application for a forfeiture order; and

(b) the amendment would have the effect of including additional property in the application for the forfeiture order;

then:

(c) the DPP shall give written notice of the application to amend to any person who the DPP has reason to believe may have an interest in property to be included in the application for the forfeiture order; and

(d) any person who claims an interest in the property to be included in the application for the forfeiture order may appear and adduce evidence at the hearing of the application to amend.

(4) Where:

(a) the DPP applies to amend an application for a pecuniary penalty order against a person; and

(b) the effect of the amendment would be to include an additional benefit in the application for the pecuniary penalty order;

the DPP shall give the person written notice of the application to amend.

Making of confiscation order where person has absconded

17. Where a person is, by reason of paragraph 5 (1) (d), to be taken to have been convicted of an indictable offence, a court shall not make a confiscation order in reliance on the person’s conviction of the offence unless the court is satisfied, on the balance of probabilities, that the person has absconded and:

(a) the person has been committed for trial for the offence; or

(b) the court is satisfied, having regard to all the evidence before the court, that a reasonable jury, properly instructed, could lawfully find the person guilty of the offence.

Procedure on application

18. (1) Where an application is made to a court for a confiscation order in respect of a person’s conviction of an offence, the court may, in determining the application, have regard to the transcript of any proceeding against the person for the offence.

(2) Where:

(a) an application is made for a confiscation order in respect of a person’s conviction of an offence;

(b) the application is made to the court before which the person was convicted; and

the court may, if satisfied that it is reasonable to do so in all the circumstances, defer passing sentence until it has determined the application for the confiscation order.

(3) Where:

(a) a person is to be taken to have been convicted of an offence by reason of paragraph 5 (1) (c); and

(b) an application is made to a court for a confiscation order in respect of the conviction;

the reference in subsection (1) to a proceeding against the person for the offence includes a reference to a proceeding against the person for the other offence referred to in that paragraph.

Division 2—Forfeiture orders

Forfeiture orders

19. (1) Where:

(a) the DPP applies to a court for an order under this section against property in respect of a person’s conviction of an offence; and

(b) the court is satisfied that the property is tainted property in respect of the offence;

the court may, if it considers it appropriate, order that the property, or such of the property as is specified by the court in the order, is forfeited to the Commonwealth.

(2) Where the court orders that property (other than money) is forfeited to the Commonwealth, the court shall specify in the order the amount that it considers to be the value of the property at the time when the order is made.

(3) In considering whether it is appropriate to make a forfeiture order in respect of particular property, the court may have regard to:

(a) any hardship that may reasonably be expected to be caused to any person by the operation of such an order; and

(b) the use that is ordinarily made, or was intended to be made, of the property.

(4) In considering whether it is appropriate to make a forfeiture order under subsection (1) in respect of particular property, the court may also have regard to the gravity of the offence concerned.

(5) A court that makes a forfeiture order against property may, if it is satisfied that:

(a) it would not be contrary to the public interest for a person’s interest in the property to be transferred to the person; and

(b) there is no other reason why the person’s interest in the property should not be transferred to that person;

by order:

(d) declare that the forfeiture order may, to the extent to which it relates to the interest, be discharged as provided by section 33.

(6) Where:

(a) the DPP applies for a forfeiture order against particular property in reliance on a person’s conviction of an offence; and

(b) evidence is given, at the hearing of the application, that the property was in the person’s possession at the time of, or immediately after, the commission of the offence;

then:

(c) if no evidence is given that tends to show that the property was not used in, or in connection with, the commission of the offence—the court shall presume that the property was used in, or in connection with, the commission of the offence; or

(d) in any other case—the court shall not make a forfeiture order against the property unless it is satisfied that the property was used in, or in connection with, the commission of the offence.

(7) Where a court makes a forfeiture order, the court has power to give all directions that are necessary or convenient for giving effect to the order.

(8) Without limiting the generality of subsection (7), where a court makes a forfeiture order against registrable property, the court may direct an officer of the court to do anything necessary and reasonable to obtain possession of any document necessary for the transfer of the property.

Effects of forfeiture order

20. (1) Subject to subsection (2), where a court makes a forfeiture order against property, the property vests absolutely in the Commonwealth.

(2) Where a forfeiture order is made against registrable property:

(a) the property vests in equity in the Commonwealth but does not vest in the Commonwealth at law until the applicable registration requirements have been complied with;

(b) the Commonwealth is entitled to be registered as owner of the property; and

(c) the Minister has power, on behalf of the Commonwealth, to do, or authorise the doing of, anything necessary or convenient to obtain the registration of the Commonwealth as owner, including, without limiting the generality of this, the execution of any instrument required to be executed by a person transferring an interest in property of that kind.

(3) Where a court makes a forfeiture order against property:

(a) the property shall not, except with the leave of the court and in accordance with any directions of the court, be disposed of, or otherwise dealt with, by or on behalf of the Commonwealth, before the relevant time; and

(b) if, at the relevant time, the order has not been discharged, the property may be disposed of, or otherwise dealt with, in accordance with any direction of the Minister or of a person authorised by the Minister for the purposes of this paragraph.

(4) Without limiting the generality of paragraph (3) (b), the directions that may be given pursuant to that paragraph include a direction that property is to be disposed of in accordance with the provisions of a law specified in the direction.

(5) A reference in this section to the appeal period in relation to a person’s conviction of an offence is:

(a) in a case where the person is to be taken to have been convicted of the offence by reason of paragraph 5 (1) (b)—a reference to the appeal period in relation to the finding of the person guilty of the offence; and

(b) in a case where the person is to be taken to have been convicted of the offence by reason of paragraph 5 (1) (c)—a reference to the appeal period in relation to the person’s conviction of the other offence referred to in that paragraph.

(6) In this section:

“appeal period”, in relation to a decision of a court or a finding, means the period ending:

(a) if the period provided for the lodging of an appeal against the decision or finding has ended without such an appeal having been lodged—at the end of that period; or

(b) if an appeal against the decision or finding has been lodged— when the appeal lapses or is finally determined;

“relevant time”, in relation to a forfeiture order made in reliance on a person’s conviction of an offence, means:

(a) the end of the appeal period in relation to the making of the forfeiture order; or

(b) the end of the appeal period in relation to the person’s conviction;

whichever is the later.

Effect of forfeiture order on third parties

21. (1) Where an application is made for a forfeiture order against particular property, a person who claims an interest in the property may apply, before the forfeiture order is made, to the court for an order under subsection (6).

(2) Subject to subsections (3) and (7), where a court makes a forfeiture order against property, a person who claims an interest in the property may apply to the court for an order under subsection (6).

(3) A person who:

(a) was given notice of the application for the forfeiture order; or

(b) appeared at the hearing of the application;

shall not make an application to a court under subsection (2) except with the leave of the court.

(4) The court may grant the person leave to apply if the court is satisfied that there are special grounds for granting the leave.

(5) Without limiting the generality of subsection (4), the court may grant a person leave to apply if the court is satisfied that:

(a) the person, for a good reason, did not attend the hearing of the application for the forfeiture order although the person had notice of the application; or

(b) particular evidence proposed to be adduced by the person in connection with the application under subsection (2) was not available to the person at the time of the hearing of the application for the forfeiture order.

(6) If a person applies to a court for an order under this subsection in respect of the applicant’s interest in property and the court is satisfied that:

(a) the applicant was not, in any way, involved in the commission of the offence, or an offence, in respect of which forfeiture of the property is sought; and

(b) if the applicant acquired the interest at the time of or after the commission of the offence—the applicant acquired the interest:

(i) for sufficient consideration; and

(ii) without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was, at the time of the acquisition, tainted property;

the court shall make an order:

(d) either:

(i) directing the Commonwealth to transfer the interest to the applicant; or

(ii) declaring that there is payable by the Commonwealth to the applicant an amount equal to the value declared under paragraph (c).

(7) Subject to subsection (8), an application under subsection (2) shall be made before the end of the period of 6 months commencing on the day on which the forfeiture order is made.

(8) Where a forfeiture order is made against property, the court that made the forfeiture order may grant a person claiming an interest in the property leave to apply under subsection (2) outside the period referred to in subsection (7) if the court is satisfied that the person’s failure to apply within that period was not due to any neglect on the part of the person.

(9) A person who makes an application under subsection (1) or (2) in respect of property shall give notice to the DPP and the Minister, as prescribed, of the making of the application.

(10) The DPP shall be a party to any proceedings upon an application under subsection (1) or (2) and the Minister may intervene in any such proceedings.

Discharge of forfeiture order on appeal or by quashing of conviction

22. (1) Where:

(a) a court makes a forfeiture order against property in reliance on a person’s conviction of an offence; and

(b) the conviction is subsequently quashed;

the quashing of the conviction discharges the order.

(2) Where a forfeiture order against property is discharged as provided by subsection (1) or by a court hearing an appeal against the making of the order, the DPP shall:

(a) as soon as practicable after the discharge of the order, give written notice of the discharge of the forfeiture order to any person the DPP has reason to believe may have had an interest in the property immediately before the making of the forfeiture order; and

(b) if required to do so by a court—give or publish notice of the discharge of the forfeiture order to a specified person or class of persons in the manner and within the time that the court considers appropriate.

(3) A notice under subsection (2) shall include a statement to the effect that a person claiming an interest in the property may apply under subsection (4) for the transfer of the interest to the person.

(4) Where a forfeiture order against property is discharged as provided by subsection (1) or by a court hearing an appeal against the making of the order, any person who claims to have had an interest in the property immediately before the making of the forfeiture order may apply to the Minister, in writing, for the transfer of the interest to the person and, on receipt of an application from a person who had an interest in the property immediately before the making of the forfeiture order:

(a) if the interest is still vested in the Commonwealth—the Minister shall arrange for the interest to be transferred to the person; or

(b) in any other case—there is payable to the person an amount equal to the value of the interest.

(5) Where the Minister is required by this section to arrange for property to be transferred to a person, the Minister has power, on behalf of the Commonwealth, to do, or authorise the doing of, anything necessary or convenient to effect the transfer, including, without limiting the generality of this, the execution of any instrument and the making of an application for registration of an interest in the property on any appropriate register.

Registered foreign forfeiture orders

23. (1) Where a foreign forfeiture order is registered in a court in Australia under the Mutual Assistance Act, this Division applies in relation to the order as if subsections 19 (5) and 20 (3), (4), (5) and (6) and sections 21 and 22 were omitted.

(2) Where a foreign forfeiture order against property is registered in a court in Australia under the Mutual Assistance Act, the property may be disposed of, or otherwise dealt with, in accordance with any direction of the Attorney-General or of a person authorised by the Attorney-General in writing for the purposes of this subsection.

Division 3—Pecuniary penalty orders

Application of Division

24. This Division applies to:

(a) property that comes into the possession, or under the control, of a person either within or outside Australia and either before or after the commencement of this Act; and

(b) benefits that are provided to a person either within or outside Australia and either before or after the commencement of this Act.

Special provisions in relation to serious offences

25. (1) Where an application is made to a court for a pecuniary penalty order against a person in reliance on the person’s conviction of a serious offence, the court shall not make a pecuniary penalty order in reliance on the conviction until after the end of the period of 6 months commencing on the day of the conviction.

(2) Subsection (1) does not apply to an application for a pecuniary penalty order against a person who is to be taken to have been convicted of the serious offence by reason of paragraph 5 (1) (d).

Pecuniary penalty orders

26. (1) Where:

(a) an application is made to a court for an order under this section in respect of benefits derived by a person from the commission of an offence; and

(b) the court is satisfied that the person derived benefits from the commission of the offence;

the court may, if it considers it appropriate:

(d) order the person to pay to the Commonwealth a pecuniary penalty equal to the penalty amount.

(2) Subject to subsections (3) and (4), the penalty amount is the value of the benefits as assessed under paragraph (1) (c).

(3) Where:

(a) property that is proceeds of the offence has been forfeited, under this Act or another law of the Commonwealth or under a law of a Territory, in relation to the offence; or

(b) a forfeiture order is proposed to be made against property that is proceeds of the offence;

the penalty amount shall be taken to be reduced by an amount equal to the value of the property as at the time of the making of the pecuniary penalty order.

(4) Where the court making a pecuniary penalty order is satisfied that an amount of tax (whether payable under a law of the Commonwealth, a State, a Territory or a foreign country) that has been paid by the person is attributable in whole or in part to the benefits in respect of which the order is being made, the court may determine that the penalty amount be reduced by the amount that, in the opinion of the court, represents the extent to which the amount of tax so paid is attributable to those benefits and where the court makes such a determination the penalty amount shall be taken to be reduced accordingly.

(5) If the court considers it appropriate to do so, the court may reduce the amount payable by a person under a pecuniary penalty order made in relation to an offence by an amount equal to the amount payable by the person by way of fine, restitution, compensation or damages in relation to the offence.

(6) Where:

(a) a court makes a pecuniary penalty order in relation to an offence;

(b) in calculating the penalty amount, the court took into account a forfeiture of, or proposed forfeiture order in respect of, property; and

(c) an appeal against the forfeiture or forfeiture order is allowed or the proceedings for the proposed forfeiture order terminate without the proposed forfeiture order being made;

the DPP may apply to the court for a variation of the pecuniary penalty order to increase the penalty amount by the value of the property and the court may, if it considers it appropriate to do so, vary the order accordingly.

(7) Where:

(a) a court makes a pecuniary penalty order against a person in relation to an offence;

(b) in calculating the penalty amount, the court took into account, in accordance with subsection (4), an amount of tax paid by the person; and

the DPP may apply to the court for a variation of the pecuniary penalty order to increase the penalty amount by the amount repaid or refunded and the court may, if it considers it appropriate to do so, vary the order accordingly.

(8) An amount payable by a person to the Commonwealth in accordance with a pecuniary penalty order is a civil debt due by the person to the Commonwealth.

(9) A pecuniary penalty order against a person may be enforced as if it were an order made in civil proceedings instituted by the Commonwealth against the person to recover a debt due by the person to the Commonwealth and the debt arising from the order shall be taken to be a judgment debt.

Assessment of pecuniary penalty

27. (1) In this section:

“offence period”, in relation to an application under subsection 14 (1) made in relation to 2 or more offences, means the period commencing when the earlier or earliest of those offences was committed and ending when the later or latest of those offences was committed.

(2) For the purposes of an application for a pecuniary penalty order against a person (in this subsection called the “defendant”), the value of the benefits derived by the defendant from the commission of an offence or offences shall be assessed by the court having regard to the evidence before it concerning all or any of the following:

(a) the money, or the value of the property other than money, that came into the possession or under the control of:

(i) the defendant; or

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

by reason of the commission of the offence or any of the offences;

(b) the value of any other benefit provided to:

(i) the defendant; or

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

by reason of the commission of the offence or any of the offences;

(i) the market value, at the time of the offence, of similar or substantially similar narcotic substances; and

(ii) the amount that was, or the range of amounts that were, ordinarily paid for the doing of a similar or substantially similar act or thing;

(d) the value of the defendant’s property:

(i) where the application relates to a single offence—before and after the commission of the offence; or

(ii) where the application relates to 2 or more offences—before, during and after the offence period;

(e) the defendant’s income and expenditure:

(i) where the application relates to a single offence—before and after the commission of the offence; or

(ii) where the application relates to 2 or more offences—before, during and after the offence period.

(3) The court, in quantifying the value of a benefit for the purposes of this section, may treat as the value of the benefit the value that the benefit would have had if derived at the time when the valuation is being made and, without limiting the generality of this, may have regard to any decline in the purchasing power of money between the time when the benefit was derived and the time when the valuation is being made.

(4) Where an application is made for a pecuniary penalty order against a person in respect of a single ordinary indictable offence, the following provisions have effect:

(a) if, at the hearing of the application, evidence is given that the value of the person’s property after the commission of the offence exceeded the value of the person’s property before the commission of the offence, then, for the purposes of subsection 26 (1), the court shall, subject to paragraphs (b) and (c) and subsection (7), treat the value of the benefits derived by the person from the commission of the offence as being not less than the amount of the excess;

(b) if, after evidence of the kind referred to in paragraph (a) is given, the person satisfies the court that the whole of the excess was due to causes unrelated to the commission of the offence, paragraph (a) does not apply to the excess;

(c) if, after evidence of the kind referred to in paragraph (a) is given, the person satisfies the court that a part of the excess was due to

causes unrelated to the commission of the offence, paragraph (a) applies to the excess as if it were reduced by the amount of that part.

(5) Where an application is made for a pecuniary penalty order against a person in respect of 2 or more ordinary indictable offences, the following provisions have effect:

(a) if, at the hearing of the application, evidence is given that the value of the person’s property at any time during or after the offence period exceeded the value of the person’s property before the offence period, then, for the purposes of subsection 26 (1), the court shall, subject to paragraphs (b) and (c) and to subsection (7), treat the value of the benefits derived by the person from the commission of the offences as being not less than the amount of the excess;

(c) if, after evidence of the kind referred to in paragraph (a) is given, the person satisfies the court that a part of the excess was due to causes unrelated to the commission of the offences, paragraph (a) applies to the excess as if it were reduced by the amount of that part.

(6) Where an application is made for a pecuniary penalty order against a person in relation to a serious offence or serious offences:

(a) all property of the person at the time the application is made; and

(b) all property of the person at any time:

(i) within the period between the day the offence, or the earliest offence, was committed and the day on which the application is made; or

(ii) within the period of 5 years immediately before the day on which the application is made;

whichever is the shorter;

shall be presumed, unless the contrary is proved, to be property that came into the possession or under the control of the person by reason of the commission of the offence or offences.

(7) A benefit shall not be taken into account for the purposes of this section if a pecuniary penalty has been imposed in respect of the benefit under:

(a) this Act;

(b) another law of the Commonwealth;

(d) a law of a State.

(8) In calculating, for the purposes of an application for a pecuniary penalty order, the value of benefits derived by a person from the commission

of an offence or offences, any expenses or outgoings of the person in connection with the commission of the offence or offences shall be disregarded.

(9) For the purposes of this section, where property of a person vests in the Official Trustee by reason of the person’s bankruptcy, the property shall be taken to continue to be the property of the person.

(10) At the hearing of an application for a pecuniary penalty order, a police officer, or a Customs officer, who is experienced in the investigation of narcotics offences may testify, to the best of the officer’s information, knowledge and belief:

(a) with respect to the amount that was the market value of a narcotic substance at a particular time or during a particular period; or

(b) with respect to the amount, or the range of amounts, that was the amount, or range of amounts, ordinarily paid at a particular time, or during a particular period for the doing of an act or thing in relation to a narcotic substance;

notwithstanding any rule of law or practice relating to hearsay evidence, and the testimony is prima facie evidence of the matters testified to.

Court may lift corporate veil etc.

28. (1) In assessing the value of benefits derived by a person from the commission of an offence or offences, the court may treat as property of the person any property that, in the opinion of the court, is subject to the effective control of the person whether or not the person has:

(a) any legal or equitable estate or interest in the property; or

(b) any right, power or privilege in connection with the property.

(2) Without limiting the generality of subsection (1), the court may have regard to:

(a) shareholdings in, debentures over or directorships of any company that has an interest (whether direct or indirect) in the property;

(b) any trust that has a relationship to the property; and

(c) family, domestic and business relationships between persons having an interest in the property, or in companies of the kind referred to in paragraph (a) or trusts of the kind referred to in paragraph (b), and any other persons.

(3) Where a court, for the purposes of making a pecuniary penalty order against a person, treats particular property as the person’s property pursuant to subsection (1), the court may, on application by the DPP, make an order declaring that the property is available to satisfy the order.

(4) Where a court declares that property is available to satisfy a pecuniary penalty order:

(a) the order may be enforced against the property as if the property were property of the person against whom the order is made; and

(b) a restraining order may be made in respect of the property as if the property were property of the person against whom the order is made.

(5) Where the DPP makes an application for an order under subsection (3) that property is available to satisfy a pecuniary penalty order against a person:

(a) the DPP shall give written notice of the application to the person and to any person who the DPP has reason to believe may have an interest in the property; and

(b) the person and any person who claims an interest in the property may appear and adduce evidence at the hearing of the application.

Amounts paid in respect of registered foreign pecuniary penalty orders

29. Where a foreign pecuniary penalty order is registered in a court in Australia under the Mutual Assistance Act, any amount paid (whether in Australia, in the foreign country in which the order was made or elsewhere) in satisfaction of the foreign pecuniary penalty order shall be taken to have been paid in satisfaction of the debt that arises by reason of the registration of the foreign pecuniary penalty order in that court.

Division 4—Forfeiture in case of serious offence

Forfeiture of all restrained property if person convicted of serious offence

30. (1) If:

(a) a person (in this subsection called the “defendant”) is convicted of a serious offence (otherwise than by reason of paragraph 5 (1) (d));

(b) a restraining order is or was granted in respect of property (whether property of the defendant or of some other person) in reliance on:

(i) the defendant’s conviction of that offence; or

(ii) the charging or proposed charging of the defendant with that offence or a related offence;

(c) the restraining order, to the extent to which it relates to the property, is not made by virtue of subparagraph 44 (7) (a) (ii) and is not the subject of a declaration under subsection 48 (4); and

(d) the restraining order is in force at the end of the period of 6 months commencing on the day of the conviction;

the property is, under this subsection, forfeited to the Commonwealth at the end of that period.

(2) Subject to subsection (3), where property is forfeited to the Commonwealth by virtue of subsection (1), the property vests absolutely in the Commonwealth.

(3) Where registrable property is forfeited to the Commonwealth by virtue of subsection (1):

(a) the property vests in equity in the Commonwealth but does not vest in the Commonwealth at law until the applicable registration requirements have been complied with;

(b) the Commonwealth is entitled to be registered as owner of the property; and

(c) the Minister has power, on behalf of the Commonwealth, to do, or to authorise the doing of, anything necessary or convenient to obtain the registration of the Commonwealth as owner, including, without limiting the generality of this, the execution of any instrument required to be executed by a person transferring an interest in property of that kind.

(4) Where property is forfeited to the Commonwealth under this section in respect of a person’s conviction of a serious offence:

(a) the property shall not, except with the leave of the court that made the relevant restraining order and in accordance with any directions of the court, be disposed of, or otherwise dealt with, by or on behalf of the Commonwealth, before the end of the appeal period in respect of the conviction; and

(b) if, at the end of the appeal period in respect of the conviction, the conviction has not been quashed, the property may be disposed of, or otherwise dealt with, in accordance with any direction of the Minister or of a person authorised by the Minister for the purposes of this paragraph.

(5) Without limiting the generality of paragraph (4) (b), the directions that may be given pursuant to that paragraph include a direction that property is to be disposed of in accordance with the provisions of a law specified in the direction.

(6) Where property is forfeited to the Commonwealth under subsection (1), the Minister may give all directions that are necessary or convenient to realise the Commonwealth’s interest in the property.

(7) Without limiting the generality of subsection (6), where registrable property is forfeited to the Commonwealth under subsection (1), the Minister may direct an officer of the Department or a police officer to do anything necessary and reasonable to obtain possession of any document necessary for the transfer of the property.

(8) A reference in this section to the appeal period in relation to the conviction of a person of an offence is:

(b) in a case where the person is to be taken to have been convicted of the offence by reason of paragraph 5 (1) (c)—a reference to the

appeal period in relation to the conviction of the person of the other offence referred to in that paragraph.

(9) In this section:

“appeal period”, in relation to a person’s conviction of an offence, means the period ending:

(a) if the period provided for the lodging of an appeal against the conviction has ended without such an appeal having been lodged—at the end of that period; or

(b) if an appeal against the conviction has been lodged—when the appeal lapses or is finally determined.

Recovery of property to which section 30 applies

31. (1) Where property is forfeited to the Commonwealth under section 30, a person who claims an interest in the property may, subject to subsections (2) and (4), apply to the court that made the relevant restraining order for an order under subsection (6) or (7).

(2) The application shall, subject to subsection (3), be made before the end of the period of 6 months commencing on the day on which the property is forfeited to the Commonwealth.

(3) The court may grant a person leave to apply after the end of the period referred to in subsection (2) if the court is satisfied that the delay in making the application is not due to neglect on the part of the applicant.

(4) An application for an order under subsection (6) or (7) in relation to an interest in property shall not be made by a person who was given notice of:

(a) proceedings on the application for the relevant restraining order; or

(b) the making of the relevant restraining order; except with the leave of the court.

(5) The court may grant a person leave to make an application if the court is satisfied that the person’s failure to seek to have the property excluded from the relevant restraining order was not due to any neglect on the part of the applicant.

(6) Where a person applies for an order under this subsection in respect of an interest in property, the court may:

(a) if satisfied that:

(i) the applicant was not, in any way, involved in the commission of the relevant serious offence; and

(ii) if the applicant acquired the interest at the time of or after the commission of the offence—the applicant acquired the interest:

(a) for sufficient consideration; and

(b) without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was tainted property; or

(b) if satisfied that:

(i) the property is not tainted property in relation to the relevant serious offence; and

(ii) the applicant’s interest in the property was lawfully acquired;

make an order:

(d) either:

(i) directing the Commonwealth to transfer the interest to the applicant; or

(ii) declaring that there is payable by the Commonwealth to the applicant an amount equal to the value declared under paragraph (c).

(7) Where a person applies for an order under this subsection in respect of an interest in property, the court may, if satisfied that:

(a) it would not be contrary to the public interest for the interest to be transferred to the person; and

(b) there is no other reason why the interest should not be transferred to the person;

by order:

(d) declare that section 30 shall cease to operate in relation to the interest if payment is made in accordance with section 33.

(8) In this section:

“relevant restraining order”, in relation to property forfeited to the Commonwealth under section 30, means the restraining order by virtue of which the property is forfeited.

Effect of quashing of conviction

32. (1) Where:

(a) property is forfeited to the Commonwealth under section 30 in respect of a person’s conviction of a serious offence; and

(b) the conviction is subsequently quashed;

the DPP shall:

(c) as soon as practicable after the quashing of the conviction, give notice of the quashing of the conviction to any person the DPP has reason to believe may have had an interest in the property immediately before the property was forfeited; and

(d) if required to do so by a court—give or publish notice of the quashing of the conviction to a specified person or class of persons

in the manner and within the time that the court considers appropriate.

(2) A notice under subsection (1) shall include a statement to the effect that a person claiming an interest in the property may apply under subsection (3) for the transfer of the interest to the person.

(3) Where subsection (1) applies to property, any person who claims to have had an interest in the property immediately before it was forfeited may apply to the Minister, in writing, for the transfer of the interest to the person and, on receipt of an application from a person who had an interest in the property immediately before it was forfeited:

(a) if the interest is still vested in the Commonwealth—the Minister shall arrange for the interest to be transferred to the person; or

(b) in any other case—there is payable to the person an amount equal to the value of the interest.

(4) Where the Minister is required by this section to arrange for property to be transferred to a person, the Minister has power, on behalf of the Commonwealth, to do, or authorise the doing of, anything necessary or convenient to effect the transfer, including, without limiting the generality of this, the execution of any instrument and the making of an application for registration of an interest in the property on any appropriate register.

Division 5—Miscellaneous

Person with interest in forfeited property may buy back the interest

33. (1) Where a court:

(a) makes a forfeiture order against property; and

(b) makes an order under subsection 19 (5) in respect of an interest in the property;

the payment to the Commonwealth, while the interest is still vested in the Commonwealth, of the amount specified in the order under subsection 19 (5) as the value of the interest discharges the forfeiture order to the extent to which it relates to the interest.

(2) Where:

(a) property is forfeited to the Commonwealth under section 30;

(b) a court makes an order under subsection 31 (7) in respect of an interest in the property; and

(c) there is paid to the Commonwealth, while the interest is still vested in the Commonwealth, the amount specified in the order under subsection 31 (7) as the value of the interest;

section 30 ceases to apply in relation to the interest.

(3) Where subsection (1) or (2) applies to an interest in property, the Minister shall arrange for the interest to be transferred to the person in whom it was vested immediately before the property was forfeited to the Commonwealth.

(4) Where the Minister is required by this section to arrange for an interest in property to be transferred to a person, the Minister has power, on behalf of the Commonwealth, to do, or authorise the doing of, anything necessary or convenient to effect the transfer, including, without limiting the generality of this, the execution of any instrument and the making of an application for registration of an interest in the property on any appropriate register.

Buying out other interests in forfeited property

34. Where:

(a) property is forfeited to the Commonwealth under this Part;

(b) an interest in the property is required to be transferred to a person (in this section called the “purchaser”) under subsection 22 (4) or 33 (3), or under a direction under subparagraph 21 (6) (d) (i) or 31 (6) (d) (i);

(c) the purchaser’s interest in the property, immediately before the forfeiture took place, was not the only interest in the property;

(d) the purchaser gives written notice to each other person who had an interest in the property immediately before the forfeiture took place that:

(i) the purchaser intends to purchase that other interest from the Commonwealth; and

(ii) the person served with the notice may, within 21 days after receiving the notice, lodge a written objection to the purchase of that interest with the Minister;

(e) the person served with notice under paragraph (d) in relation to that interest does not lodge a written objection to the purchase of that interest with the Minister within the period referred to in that paragraph; and

(f) the person pays to the Commonwealth, while that interest is still vested in the Commonwealth, an amount equal to the value of that interest;

the Minister shall arrange for that interest to be transferred to the purchaser.

PART III—CONTROL OF PROPERTY LIABLE TO CONFISCATION

Division 1—Search powers

Powers to search for, and seize, tainted property

35. (1) A police officer may:

(a) search a person for tainted property; and

(b) seize any property found in the course of the search that the police officer believes, on reasonable grounds, to be tainted property;

but only if the search or seizure, as the case requires, is made:

(d) under a warrant issued under section 36; or

(e) under section 38.

(2) A police officer may:

(a) enter upon land, or upon or into premises;

(b) search the land or premises for tainted property; and

(c) seize any property found in the course of the search that the police officer believes, on reasonable grounds, to be tainted property;

but only if the entry, search or seizure, as the case requires, is made:

(d) with the consent of the occupier of the land or premises;

(e) under a warrant issued under section 36; or

(f) under section 38.

(3) Where a police officer may search a person under this Division, the police officer may also search:

(a) the clothing that is being worn by the person; and

(b) any property in, or apparently in, the person’s immediate control.

(4) Nothing in this Division shall be taken to authorise a police officer to carry out a search by way of an examination of a body cavity of a person.

Search warrants in relation to tainted property

36. (1) Where a police officer has reasonable grounds for suspecting that there is tainted property of a particular kind:

(a) on a person;

(b) in the clothing that is being worn by a person; or

the police officer may:

(d) lay before a magistrate an information on oath setting out those grounds; and

(e) apply for the issue of a warrant to search the person for tainted property of that kind.

(2) Where an application is made under subsection (1) for a warrant to search a person, the magistrate may, subject to subsection (6), issue a warrant authorising a police officer (whether or not named in the warrant), with such assistance, and by such force, as is necessary and reasonable:

(a) to search the person for tainted property of that kind; and

(b) to seize property found in the course of the search that the police officer believes, on reasonable grounds, to be tainted property of that kind.

(3) Where a police officer has reasonable grounds for suspecting that there is upon any land, or upon or in any premises, tainted property of a particular kind, the police officer may:

(a) lay before a magistrate an information on oath setting out those grounds; and

(b) apply for the issue of a warrant to search the land or premises for tainted property of that kind.

(4) Where an application is made under subsection (3) for a warrant to search land or premises, the magistrate may, subject to subsection (6), issue a warrant authorising a police officer (whether or not named in the warrant), with such assistance, and by such force, as is necessary and reasonable:

(a) to enter upon the land, or upon or into the premises;

(b) to search the land or premises for tainted property of that kind; and

(c) to seize property found in the course of the search that the police officer believes on reasonable grounds to be tainted property of that kind.

(5) A warrant may be issued under subsection (2) or (4) in relation to tainted property whether or not an information has been laid in respect of the relevant offence.

(6) A magistrate shall not issue a warrant under subsection (2) or (4) unless:

(a) the informant or some other person has given to the magistrate, either orally or by affidavit, any further information that the magistrate requires concerning the grounds on which the issue of the warrant is sought;

(b) where an information has not been laid in respect of the relevant offence at the time when the application for the warrant is made— the magistrate is satisfied:

(i) that the property is tainted property; and

(ii) that an information will be laid in respect of the relevant offence within 48 hours; and

(7) There shall be included in a warrant issued under this section:

(a) a statement of the purpose for which the warrant is issued, including a reference to the nature of the relevant offence;

(b) a description of the kind of property authorised to be seized; and

(8) There shall also be stated in a warrant issued under subsection (4) whether entry is authorised to be made at any time of the day or night or during specified hours of the day or night.

(9) If, in the course of searching, under a warrant issued under this section, for tainted property in relation to a particular offence, a police officer finds:

(a) property that the police officer believes, on reasonable grounds, to be:

(i) tainted property in relation to the offence, although not of a kind specified in the warrant; or

(ii) tainted property in relation to another indictable offence; or

(b) any thing that the police officer believes, on reasonable grounds, will afford evidence as to the Commission of a criminal offence;

and the police officer believes, on reasonable grounds, that it is necessary to seize that property or thing in order to prevent its concealment, loss or destruction, or its use in committing, continuing or repeating the offence or the other offence, the warrant shall be deemed to authorise the police officer to seize that property or thing.

(10) A police officer acting in accordance with a warrant issued under subsection (2) may remove, or require a person to remove, any of the clothing that the person is wearing but only if the removal of the clothing is necessary and reasonable for an effective search of the person under the warrant.

(11) A person shall not be searched under this section except by a person of the same sex.

Search warrants may be granted by telephone

37. (1) Where, by reason of circumstances of urgency, a police officer considers it necessary to do so, the police officer may make application for a search warrant under section 36 to a magistrate, by telephone, in accordance with this section.

(2) Before making the application, the police officer shall prepare an information of a kind referred to in subsection 36 (1) or (3), but may, if it is necessary to do so, make the application before the information has been sworn.

(3) Where a magistrate is, upon application made pursuant to subsection (1), satisfied:

(a) after having considered the terms of the information prepared in accordance with subsection (2); and

(b) after having received such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought;

that there are reasonable grounds for issuing the warrant, the magistrate shall complete and sign such a search warrant as the magistrate would have issued under section 36 if the application had been made to the magistrate in accordance with that section.

(4) Where a magistrate signs a warrant under subsection (3):

(a) the magistrate shall inform the police officer of the terms of the warrant and the date on which and the time at which it was signed, and record on the warrant the reasons for granting the warrant; and

(b) the police officer shall complete a form of warrant in the terms furnished to the police officer by the magistrate and write on it the name of the magistrate and the date on which and the time at which the warrant was signed.

(5) Where a police officer completes a form of warrant in accordance with subsection (4), the police officer shall, not later than the day next following the date of the execution of the warrant or the expiry of the warrant, whichever is earlier, give the magistrate who signed the warrant the form of warrant completed by the police officer and the information duly sworn in connection with the warrant.

(6) Upon receipt of the documents referred to in subsection (5), the magistrate shall attach to them the warrant signed by the magistrate and deal with the documents in the manner in which the magistrate would have dealt with the information if the application for the warrant had been made in accordance with section 36.

(7) A form of warrant duly completed by a police officer in accordance with subsection (4) is, if it is in accordance with the terms of the warrant signed by the magistrate, authority for any search, entry or seizure that the warrant so signed authorises.

(8) Where it is material, in any proceedings, for a court to be satisfied that a search, entry or seizure was authorised in accordance with this section, and the warrant signed by a magistrate in accordance with this section authorising the search, entry or seizure is not produced in evidence, the court shall assume, unless the contrary is proved, that the search, entry or seizure was not authorised by such a warrant.

(9) In this section, “magistrate” does not include a person by virtue only of the person being a justice of the peace.

Searches in emergencies

38. (1) A police officer may:

(a) search a person for tainted property; or

(b) enter upon land, or upon or into premises, and search for tainted property;

and may seize tainted property that the police officer finds in the course of that search if:

(c) the police officer believes, on reasonable grounds, that it is necessary to do so in order to prevent the concealment, loss or destruction of the tainted property; and

(d) the search, entry or seizure, as the case may be, is made in circumstances of such seriousness and urgency as to require and justify immediate search, entry or seizure without the authority of an order of the court or of a warrant issued under this Act.

(2) Subsection (1) does not apply in respect of particular tainted property unless an information has been laid in respect of the relevant offence.

(3) Where a person is searched under this section, the search shall, if it is practicable in the circumstances to do so, be carried out by a person of the same sex.

Responsibility for seized property

39. (1) Subject to subsection (2), where property is seized under this Division, the Commissioner shall arrange for the property to be kept until it is dealt with in accordance with another provision of this Act, and shall ensure that all reasonable steps are taken to preserve the property while it is so kept.

(2) Where:

(a) a police officer seizes property under this Division; and

(b) the officer believes on reasonable grounds that the property will afford evidence as to the commission of an offence that is the subject of a special investigation being conducted by the National Crime Authority;

the Chairman of the National Crime Authority shall arrange for the property to be kept until it is dealt with in accordance with another provision of this Act, and shall ensure that all reasonable steps are taken to preserve the property while it is so kept.

(3) In this section:

“special investigation” has the same meaning as in the National Crime Authority Act 1984.

Return of seized property

40. (1) Where property has been seized under this Division (otherwise than because it may afford evidence of the commission of an offence), a person who claims an interest in the property may apply to the relevant Supreme Court for an order that the property be returned to the person.

(2) Where a person makes an application under subsection (1) and the court is satisfied that:

(a) the person is entitled to possession of the property;

(b) the property is not tainted property in relation to the relevant offence; and

(c) the person in respect of whose conviction, charging or proposed charging the seizure of the property was made has no interest in the property;

the court shall order the responsible custodian to return the property to the person and where such an order is made the responsible custodian shall arrange for the property to be returned to the person.

(3) Where: