Confiscation of Criminal Assets Act 2003

1 Name of Act This Act is the Confiscation of Criminal Assets Act 2003.

3 Purposes of Act The purposes of this Act include the following: (a) to encourage law-abiding behaviour by the community; (b) to give effect to the principle of public policy that a person should not be enriched because of the commission of an offence, whether or not anyone has been convicted of the offence; (c) to deprive a person of all material advantage derived from the commission of an offence, whatever the form into which property or benefits derived from the offence may have been changed; (d) to deprive a person of property used, or intended by an offender to be used, in relation to the commission of an offence, whatever the form into which it may have been changed, and to prevent the person from using the property to commit other offences; (e) to deprive a person of any unexplained wealth derived from serious criminal activity; (f) to enable the effective tracing and seizure by law enforcement authorities of property used, or intended by an offender to be used, in relation to the commission of an offence and all material advantage derived from the offence; (g) to provide for the enforcement in the ACT of orders, notices or decisions (however described) made under corresponding laws.

Preliminary Part 1

4 Application of Act to property and dealings (1) This Act applies to property located anywhere, whether in the ACT, in Australia outside the ACT, or outside Australia. (2) This Act applies to dealings with property anywhere, whether it happens in the ACT, in Australia outside the ACT, or outside Australia.

5 Application of Act to offences This Act applies in relation to offences, whether committed, or alleged to have been committed, before or after the commencement of this Act.

6 Dictionary The dictionary at the end of this Act is part of this Act. Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere in this Act. For example, the signpost definition ‘effective control, of property—see section 14.’ means that the term ‘effective control’ is defined in that section. Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

7 Notes A note included in this Act is explanatory and is not part of this Act. Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

8 Offences against Act—application of Criminal Code etc Other legislation applies in relation to offences against this Act. Note 1 Criminal Code The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1). The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability). Note 2 Penalty units The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

General overview of confiscation scheme Part 2

Part 2 General overview of confiscation scheme

9 General overview The notes to this section provide a general overview of the scheme of Note 1 Restraining orders A court may make an order (a restraining order) preventing the disposal or other dealing with property. A restraining order may also be made to secure a property for payment of an amount that is the value of the person’s unexplained wealth (see note 4) or the payment of a penalty order (see note 5). Property may be restrained even though it is not the offender’s property. Note 2 Confiscation of property on conviction A court that convicts a person of a relevant offence may make an order (a conviction forfeiture order) for the forfeiture to the Territory of tainted property in relation to the offence (whether or not the tainted property is restrained). If a person is convicted of a serious offence (generally an offence punishable by imprisonment for 5 years or more), all restrained property is, by the operation of this Act, forfeited to the Territory (an automatic forfeiture). Property may be forfeited even though it is not the offender’s property. Note 3 Confiscation of property without conviction If a court is satisfied on the balance of probabilities that a person has committed a serious offence, it may make an order (a civil forfeiture order) for the forfeiture to the Territory of all restrained property even though the person has not been convicted, or the person has been cleared, of the relevant offence. Note 4 Unexplained wealth orders A court may, if the court is not satisfied that all or part of a person’s wealth is not derived from serious criminal activity, make an order (an unexplained wealth order) ordering the payment to the Territory of an amount assessed by the court as the value of the person’s unexplained wealth.

Part 2 General overview of confiscation scheme Note 5 Penalty orders A court may order the payment to the Territory (a penalty order) of the value of the tainted property and the advantages and other benefits derived in any way from the commission of a relevant offence and for restrained property be sold to satisfy the penalty order. Note 6 Exclusion of property from forfeiture and return or compensation for forfeited property Provision is made for an order that property be excluded from forfeiture (an exclusion order) and forfeited property can be returned or compensation paid for it in certain circumstances. Provision is also made for the buyback of interests in forfeited property.

Note 1 The following concepts are defined in this part: • abscond—see s 16 • cleared, of an offence—see s 17 • convicted—see s 15 (1) • derived—see s 12 • effective control, of property—see s 14 • finalised confiscation or criminal proceeding—see s 18 • offence—see s 13 (1) • ordinary offence—see s 13 (2) • quashed—see s 15 (3) and (4) • related offence—see s 13 (3) • relevant offence—see s 13 (2) • serious offence—see s 13 (2) • tainted property—see s 10 • unclaimed tainted property—see s 11. Note 2 Other important concepts include benefits (see s 80), penalty order (see s 82) and relevant court (see s 238). Note 3 Other important concepts are defined in the Legislation Act, dict, pt 1, including the following: • indictment • present.

10 What is tainted property tainted property, in relation to an offence, means— (a) property that was used, or was intended by an offender to be used, in relation to the commission of the offence; or (b) property that was derived by anyone from the commission of the

(c) property that was derived by anyone from property mentioned in paragraph (a) or (b); and includes an amount of money held in an account with a financial institution that represents the value of property mentioned in paragraph (a), (b) or (c) that has been directly or indirectly credited to the account. Note 2 For the meaning of derived, see s 12. Note 3 Property includes an interest in property, see the Legislation Act, dict, pt 1. (2) For subsection (1) (a), any property found in the possession of an offender at the time of, or immediately after, the commission of the offence is taken to be property that was used, or was intended by the offender to be used, in relation to the commission of the offence, unless the contrary is established by the offender. Examples of tainted property for s 10 1 A car used as a getaway car for an armed robbery (see s (1) (a)). 2 Money and jewellery stolen during the commission of the armed robbery offence (see s (1) (b)). 3 Shares bought using money stolen during the commission of the armed robbery offence, or a mixture of that money and money unconnected with the offence (see s (1) (c) and s 12 (1) (Meaning of derived)). 4 A house in relation to which a mortgage is partly or completely discharged using money stolen during the commission of the armed robbery offence, or a mixture of that money and money unconnected with the offence (see s (1) (c) and s 12 (1)). 5 Money or other property received from the sale of the car, jewellery, shares or house mentioned in examples 1 to 4 (see s (1) (c) and s 12 (1)). 6 Other property purchased using the money mentioned in example 5 (see s (1) (c) and s 12 (1)).

7 Money stolen during the commission of the armed robbery offence is deposited in 1 or more accounts with a credit union and later transferred to a bank account that also contains money unconnected with the offence. The money in the bank account to the value of the money stolen during the commission of the offence is tainted property (see s (1)). 8 Money received from the sale of the car, jewellery, shares or house mentioned in examples 1 to 4 is deposited in a credit union account that also contains money unconnected with the armed robbery offence. The money in the account to the value of the money received from the sale of the car, jewellery, shares or house mentioned in examples 1 to 4 is tainted property (see s (1) and s 12 (1)).

11 What is unclaimed tainted property unclaimed tainted property means property that— (a) is tainted property in relation to an offence; and (b) is not claimed by anyone; even if it is not possible to identify the offence or an offender. Examples of property that may be unclaimed tainted property 1 a large quantity of hydroponic equipment and lights for growing plants indoors that is found at premises suspected of being used for the production of drugs and that is not claimed by anyone 2 a large amount of money with traces of cocaine that is found in a house suspected of being used for drug dealing and that is not claimed by anyone 3 a large quantity of jewellery found in a car that has been recently used by several people and that is not claimed by anyone 4 a large amount of money found beneath a bridge in a bag that also contains traces of explosives restraining order does not, of itself, change or end the restraining order, see s 46 (2).

11A Meaning of total wealth total wealth, of a person to whom a proceeding for an unexplained wealth order relates, is the sum of all of the values of the person’s wealth. (2) In deciding the values of a person’s wealth— (a) the value of property expended, consumed, disposed of, or for any other reason no longer available is the greater of— (i) the value of the property at the time it was acquired; and (ii) the value of the property immediately before expended, consumed, disposed of, or becoming unavailable; and (b) the value of any other property is the greater of— (i) the value of the property at the time it was acquired; and (ii) the value of the property on the day that the application for the unexplained wealth order was made.

11B Meaning of wealth wealth, of a person— (a) means property that is or at any time was— (i) owned by the person; or (ii) under the effective control of the person; or (iii) expended, consumed or disposed of by the person; and Examples—property disposed of by the person 1 property sold or traded 2 property transferred as a gift 3 money spent

(b) includes property owned, effectively controlled, expended, consumed or disposed of by the person before the commencement of this section and whether in or outside the ACT.

11C Meaning of serious criminal activity serious criminal activity means conduct by any person which, at the time of the conduct, was a serious offence. (2) To remove any doubt, conduct is serious criminal activity— (a) whether or not charges for a serious offence have been laid against a person for the conduct; or (b) if charges for a serious offence have been laid against a person— whether or not the person— (i) has been tried for the offence; or (ii) has been acquitted, found guilty or convicted of the offences; or (iii) has had a conviction for the offences quashed.

12 Meaning of derived derived—property or a benefit is derived if it is derived or realised, whether completely or partly and whether directly or indirectly. See section 10, examples 3 to 6 and 8. Note For the meaning of benefits, see s 80.

(2) Property or a benefit is derived by a person if it is derived by someone else at the request or direction of the person. Jane Citizen commits a relevant offence and then writes a book about the commission of the offence. Ms Citizen directs the book’s publisher to pay the royalties for the book to her spouse rather than to herself. The royalties would still be derived by Ms Citizen because they are derived by her spouse at her direction. (This may be relevant, for example, for deciding whether they are artistic profits and thus benefits under div 7.1.) (3) For subsection (2), a request or direction of a person (the first person)— (a) includes an understanding between the first person and someone else or the first person making it known (directly or indirectly) to someone else that a particular outcome (or an outcome of a particular kind) is wanted or required by the first person; and (b) may be taken to have been made even though, after all the evidence has been considered, the existence of the request or direction can be found only by inference from the actions of people or from other relevant circumstances.

13 Meaning of offence and of particular kinds of offences offence means an offence against the law of the Territory, the (2) In this Act: ordinary offence means a relevant offence other than a serious relevant offence— (a) means either— (i) an offence punishable by imprisonment for longer than 12 months; or

(ii) an offence against the Work Health and Safety Act 2011, section 31 (1); and (b) includes an offence (however described) against the law of the Commonwealth, a State or another Territory that may be dealt with under a law of the Commonwealth, the State or the other Territory as an indictable offence (or in a way corresponding to the way in which an indictable offence against an ACT law may be dealt with), even if it may also be dealt with as a summary offence (however described) in some circumstances. Note An offence against an ACT law is an indictable offence if it is punishable by imprisonment for longer than 2 years, or is declared by law to be an indictable offence (see Legislation Act, s 190 (1)). serious offence— (a) generally—means any of the following: (i) an offence punishable by imprisonment for 5 years or longer; (ii) an offence against the Work Health and Safety Act 2011, section 31 (1); (iii) any other offence prescribed by regulation; and (b) for an unexplained wealth provision—includes a schedule offence and any Commonwealth or State offence that corresponds to a schedule offence. Note State includes the Northern Territory (see Legislation Act, dict, pt 1). (3) For this Act, an offence is related to another offence if the physical elements of the 2 offences are the same, or substantially the same, acts or omissions. schedule offence—see the Crimes (Sentencing) Act 2005, section 61B.

14 Meaning of effective control of property (1) For this Act, property may be subject to the effective control of a person whether or not the person has an interest in it. Note Interest, in relation to land or other property, means— (a) a legal or equitable estate in the land or other property; or (b) a right, power or privilege over, or in relation to, the land or other See the Legislation Act, dict, pt 1. (2) In deciding whether or not property is subject to the effective control of a person, or whether or not there are reasonable grounds to suspect or believe that it is, regard may be had to any relevant matter, including, for example, any of the following: (a) shareholdings in, debentures over, or directorships of, a company that has an interest (whether direct or indirect) in the property (a relevant company); (b) a trust that has a relationship to the property (a relevant trust); (c) family, personal, business and other relationships between people having an interest in the property, or in a relevant company or relevant trust, and other people. (3) However, property is taken to be subject to the effective control of a person if— (a) it is held by someone else on trust or otherwise for the ultimate benefit of the person; or (b) the person disposed of the property without sufficient consideration to someone else— (i) if the property is the subject of an application for an unexplained wealth restraining order or an unexplained wealth order—at any time; or

(ii) if the property is associated with any other confiscation proceeding—within 6 years before or after the commission of the offence to which the application relates. Note 2 For the meaning of sufficient consideration, see dict.

15 Meaning of convicted and quashed (1) For this Act, a person is taken to be convicted of an offence if— (a) the person is convicted of the offence, whether summarily or on indictment; or (b) the person is found guilty, but not convicted, of the offence; or (c) the person absconds in relation to the offence. Note 1 Found guilty, of an offence, includes— • having an order made for the offence under the Crimes (Sentencing) Act 2005, s 17 (Non-conviction orders—general) • having the offence taken into account under the Crimes (Sentencing) Act 2005, s 57 (Outstanding additional offences taken into account in sentencing) (see Legislation Act, dict, pt 1). Note 2 For the meaning of abscond, see s 16. (2) The person is taken to be convicted of the offence— (a) if subsection (1) (a) applies—on the day the person is convicted; or (b) if subsection (1) (b) applies—on the day the person is found guilty; or (c) if subsection (1) (c) applies— (i) on the day the person is committed for trial for the offence; or

(ii) on the day a court, in a confiscation proceeding, makes an order that the evidence is of sufficient weight to support a conviction for the offence. (3) For this Act, the person’s conviction for the offence is taken to be quashed when— (a) if subsection (1) (a) applies—the conviction is quashed or set aside; or (b) if subsection (1) (b) applies because the offence was taken into account in passing sentence for another offence— (i) the person’s conviction or finding of guilty for the other offence is quashed or set aside; or (ii) the decision to take the offence into account is quashed or set aside; or (c) if subsection (1) (b) applies for another reason—the finding of guilty for the offence (however described) is quashed or set aside; or (d) if subsection (1) (c) applies—the person is brought before a court for the offence, and the person is cleared of the offence. Note For the meaning of cleared, see s 17. (4) However, a person’s conviction for an offence is not taken to be quashed if a court quashes or sets aside the conviction or finding of guilty (however described) but orders the person to be retried for the

16 When does someone abscond (1) This section applies to an offender in relation to a relevant offence if— (a) an indictment is presented against the offender for the offence; and (b) a warrant is issued for the arrest of the offender for the offence; and (c) either— (i) the offender is committed for trial for the offence; or (ii) a court, in a confiscation proceeding, makes a finding that the evidence is of sufficient weight to support the offender’s conviction for the offence. (2) For this Act, the offender is taken to have absconded in relation to the offence if— (a) the offender dies before the warrant is executed; or (b) at the end of 6 months after the day the warrant is issued, the offender cannot be found; or (c) at the end of 6 months after the day the warrant is issued— (i) the offender is not amenable to justice for any other reason; and (ii) if the offender is outside the ACT—an extradition proceeding against the offender is not on foot; or

(d) at the end of 6 months after the day the warrant is issued— (i) the offender is not amenable to justice because the offender is outside the ACT; and (ii) an extradition proceeding against the offender is on foot; and the extradition proceeding later ends without an order for the offender’s extradition being made.

17 When is someone cleared of an offence For this Act, a person is cleared of an offence if— (a) an indictment for the offence lapses, or is withdrawn or struck out; or (b) a charge for the offence is withdrawn or discharged; or (c) the person is acquitted of the offence; or (d) the person’s conviction for the offence is quashed.

18 When a proceeding is finalised (1) For this Act, a confiscation proceeding is finalised if— (a) the proceeding lapses, or is withdrawn or struck out; or (b) the appeal period for an appeal against the final judgment of the court hearing the proceeding ends without an appeal having been made against the judgment; or (c) if an appeal against the final judgment is made within the appeal period—the appeal is dismissed, withdrawn or struck out, or the appeal is otherwise finalised (within the meaning of this subsection).

(2) For this Act, a criminal proceeding is finalised if— (a) the offender is cleared of the offence to which the proceeding relates; or (b) the offender is convicted of an offence to which the proceeding relates, and the appeal period for an appeal against the conviction or finding of guilty (however described) ends without an appeal having been made against it; or (c) if an appeal is made against the conviction or finding of guilty (however described) within the appeal period—the appeal is dismissed, withdrawn or struck out, or the appeal is otherwise finalised (within the meaning of this subsection) without a retrial having been ordered; or (d) if a retrial has been ordered—the proceeding on the retrial is finalised (within the meaning of this subsection). appeal period means the period within which an appeal may be made without an extension of time or leave to make the appeal out of time.

19 Meaning of restraining order restraining order means an order under section 30 (Restraining orders over unclaimed tainted property—making), section 31 (Restraining orders over other property—making) or section 32A (Unexplained wealth restraining orders—making) that a person must not deal with the property stated in the order except in accordance with— (a) the order; or (b) another order under this Act of a relevant court; or (c) this Act.

20 Meaning of artistic profits restraining order artistic profits restraining order, in relation to an offence, means a restraining order made solely to satisfy a penalty order for artistic profits in relation to the offence.

21 Meaning of unclaimed tainted property restraining order unclaimed tainted property restraining order means a restraining order made solely over unclaimed tainted property. restraining order does not, of itself, change or end the restraining order (see s 46 (2)).

General Division 4.1

21A Meaning of unexplained wealth restraining order unexplained wealth restraining order means a restraining order made under section 32A.

22 Restraining orders—purposes A restraining order may be made to preserve property so that the property will be available for 1 or more of the following purposes: (a) for forfeiture under a conviction forfeiture order; (b) for automatic forfeiture; (c) for forfeiture under a civil forfeiture order; (d) to satisfy a penalty order; (e) to satisfy an unexplained wealth order. Note Pt 5 deals with forfeiture, pt 7 deals with penalty orders and pt 7A deals with unexplained wealth orders.

23 Contravening restraining orders (a) the person deals with property; and (b) the property is subject to a restraining order; and (c) the person knows that, or is reckless about the fact that, the property is subject to a restraining order; and (d) the dealing with the property contravenes the order. Maximum penalty: 500 penalty units, imprisonment for 5 years or (a) the person deals with property; and

(b) the property is subject to a restraining order; and (c) the dealing with the property contravenes the order; and (d) either of the following applies: (i) the restraining order, or details of the order, were recorded in a statutory property register under section 50 (2) (Restraining orders—registration in statutory property registers) when the person dealt with the property; (ii) the person was given notice of the order under section 34 (Restraining orders—notice of making) before the person dealt with the property. (3) Strict liability applies to subsection (2) (b), (c) and (d). (4) Subsections (1) and (2) do not apply if the dealing with the property is in accordance with— (a) an additional order under section 39; or (b) this Act.

24 Setting aside dealings with restrained property (1) The DPP may apply to a relevant court for an order that a dealing with restrained property be set aside if— (a) the dealing was in contravention of the restraining order; and (b) the dealing— (i) was not for sufficient consideration; or (ii) transferred property to a person who was not acting honestly; or

(iii) transferred property to a person who did not take reasonable care to establish that the property may be lawfully acquired by the person. (2) On application under subsection (1), the court may make an order setting aside a dealing with property in contravention of a restraining (3) The order may be expressed to take effect on— (a) the day when the dealing took place; or (b) the day when the order setting aside the dealing is made. (4) If the court makes an order mentioned in subsection (3) (b), the court must declare the rights of anyone who acquired an interest in the property on or after the day of the dealing and before the day the order is made. Note 1 For general provisions about a proceeding for a restraining order (which

25 Restraining orders over unclaimed tainted property— (1) The DPP may apply to a relevant court for a restraining order over unclaimed tainted property. (a) that the application is for an unclaimed tainted property restraining order; (b) the property sought to be restrained.

(3) The application must be supported by an affidavit under section 28 (Restraining orders over unclaimed tainted property—affidavit supporting application). (4) An application for an unclaimed tainted property restraining order must be made only in relation to unclaimed tainted property (but may be made at the same time as an application for a restraining order over other property).

26 Restraining orders over other property—application (1) The DPP may apply to a relevant court for a restraining order over any of the following: (a) stated property of a person; (b) stated property of a person and all other property of the person (including property acquired after the making of the order); (c) all property of a person (including property acquired after the making of the order); (d) all property of a person (including property acquired after the making of the order) other than stated property. Note 1 A reference to a person generally includes a reference to a corporation as Note 2 Property includes an interest in property, see the Legislation Act, dict, pt 1. (a) the offence to which the application relates; (b) when it is alleged the offence was committed; (c) the person who is alleged to have committed the offence; (d) the person whose property the application relates to;

(e) the property sought to be restrained (including whether it is property of the offender or someone else); Note Offender includes a corporation, see dict. (f) whether the application is for an artistic profits restraining order. (3) The application must be supported by an affidavit under section 29 (Restraining orders over other property—affidavit supporting application). (4) For subsection (2) (a), the application need not specify a particular offence and it is sufficient if the application states that some offence or other was committed. (5) For subsection (2) (b), the application need not specify a particular time or day and it is sufficient if the application states a period within which the offence was committed. (6) To remove any doubt— (a) an application for a restraining order under this section may be made in relation to an interest (or interests) in property; and Note Property includes an interest in property, see the Legislation Act, dict, pt 1. (b) an application for a restraining order under this section may be made in relation to 2 or more offences; and (c) an application for a restraining order under this section may be made in relation to the property of 2 or more people; and (d) this section does not apply to an application for— (i) a restraining order over unclaimed tainted property; or (ii) an unexplained wealth restraining order.

26A Unexplained wealth restraining orders—application (1) The DPP may apply to a relevant court for an unexplained wealth restraining order over any of the following: (a) stated property of a person; (b) stated property of a person and all other property of the person (including property acquired after the making of the order); (c) all property of a person (including property acquired after the making of the order); (d) all property of a person (including property acquired after the making of the order) other than stated property. (a) that the application is for an unexplained wealth restraining order; (b) the person in relation to whom the order is sought; (c) any other person whose property the application relates to; (d) the property sought to be restrained (including whether it is the property of that person or someone else). (3) The application must be supported by an affidavit under section 29A.

27 Restraining orders—time for making certain applications (1) This section does not apply to an application for— (a) an artistic profits restraining order; or (b) an unclaimed tainted property restraining order; or (c) an unexplained wealth restraining order.

(2) An application for a restraining order in relation to an ordinary offence must be made before the end of the longer of the following periods: (a) if an indictment has been presented against the offender for the offence, and the offender has not been convicted or cleared of the offence—2 years after the day the indictment was presented; (b) if the offender has been convicted of the offence (and not cleared)—2 years after the day of the conviction; (c) in any case—6 years after the day the offence was committed (or is alleged to have been committed). Note 2 Indictment is defined in the Legislation Act, dict, pt 1 as including an Note 3 The court may allow leave for an application to be made after a time fixed by this section in certain circumstances (see s 49 and s 246). (3) An application for a restraining order in relation to a serious offence must be made before the end of the longer of the following periods: (a) if an indictment has been presented against the offender for the offence, and the offender has not been convicted or cleared of the offence—2 years after the day the indictment was presented; (b) if the offender has been convicted of the offence—2 years after the day of the conviction; (c) in any case—6 years after the day the offence was committed (or is alleged to have been committed). by this section in certain circumstances (see s 49 and s 246).

28 Restraining orders over unclaimed tainted property— affidavit supporting application section 25 (Restraining orders over unclaimed tainted property— application) for an unclaimed tainted property restraining order must state— (a) that the police officer suspects that the property is unclaimed tainted property; and (b) that the property has not been claimed by anyone. Note No time limit applies to an application for an unclaimed tainted property restraining order (see s 27 (1) (b)). (2) The affidavit must state that the police officer believes that the property sought to be restrained may be required to satisfy a purpose mentioned in section 22 (Restraining orders—purposes). (3) For subsection (2), no particular purpose need be stated in the (4) The affidavit must state the grounds for each suspicion or belief of

29 Restraining orders over other property—affidavit supporting application section 26 (Restraining orders over other property—application) for a restraining order must state— (a) that the officer believes that an indictment has been presented against the offender for a stated relevant offence, or that the offender has been convicted of a stated relevant offence; or

(b) that the officer suspects that the offender has committed a stated relevant offence, and that it is intended, within a stated period— (i) for an ordinary offence—to present an indictment against the offender for the offence (or a related relevant offence); or (ii) for a serious offence— (A) to present an indictment against the offender for the offence (or a related serious offence); or (B) to apply for a civil forfeiture order or a penalty order in relation to the offence (or a related serious offence). (2) Subsection (1) (b) does not require the police officer to specify a particular offence in the affidavit and it is sufficient if the police officer suspects that the offender has committed a particular kind of offence and the affidavit describes the nature of the offence in general terms. (3) If the application is not for an artistic profits restraining order, the affidavit must state that the police officer believes that the application is being made within the relevant period mentioned in section 27 (Restraining orders—time for making certain applications) for the offence to which the application relates. Note No time limit applies to an application for an artistic profits restraining order (see s 27 (1) (a)). (4) For subsection (3), if the application relates to a serious offence, it is sufficient if the police officer believes that the offence was committed within the relevant period mentioned in section 27, and it is not necessary for the officer to believe that the offence was committed on any particular day or time within the relevant period.

(5) The affidavit must state, for the property mentioned in the (a) that the officer suspects that the property is either the offender’s property or the property of someone else; and offender’s effective control. (6) The affidavit must state that the police officer believes that— (a) the property sought to be restrained may be required to satisfy a purpose mentioned in section 22 (Restraining orders— purposes); and (b) if the application is for an artistic profits restraining order—the property sought to be restrained may be required to satisfy a penalty order for artistic profits in relation to the offence. (7) For subsection (6) (a), no particular purpose need be stated in the (8) The affidavit must state the grounds for each belief or suspicion of

29A Unexplained wealth restraining order—affidavit supporting application section 26A for an unexplained wealth restraining order must state that the police officer suspects that— (a) a person’s total wealth exceeds the value of the person’s wealth that was lawfully acquired; and

(b) the whole or any part of the person’s wealth was derived from (2) Subsection (1) (b) does not require the police officer to specify in the affidavit a particular offence for serious criminal activity, and it is sufficient if the police officer suspects and the affidavit describes the nature of the activity in general terms. (3) The affidavit must state, for the property mentioned in the (a) that the officer suspects that the property is either the property of the person in relation to whom the order is sought or the property of someone else; and effective control of the person in relation to whom the order is sought. (4) The affidavit must state that the police officer believes that the property sought to be restrained may be required to satisfy an unexplained wealth order. (5) The affidavit must state the grounds for each belief or suspicion of

30 Restraining orders over unclaimed tainted property— making (1) This section applies if an application is made under section 25 (Restraining orders over unclaimed tainted property—application) to a relevant court for an unclaimed tainted property restraining order in relation to an offence. (2) The relevant court must make a restraining order over the property to which the application relates if, having regard to the police officer’s affidavit supporting the application and any other evidence before the court, the court is satisfied that there are reasonable grounds for the officer’s suspicions and beliefs stated in the affidavit. restraining order does not, of itself, change or end the restraining order (see s 46 (2)). (3) The restraining order may direct the public trustee and guardian to take control of the restrained property. Note For the commencement of a restraining order, see the Legislation Act, (4) To remove any doubt, for making a restraining order under this section, it is irrelevant whether there is any risk of the property being dealt with in a way that would defeat or hinder the purposes of this Act.

31 Restraining orders over other property—making (1) This section applies if an application is made under section 26 (Restraining orders over other property—application) to a relevant court for a restraining order in relation to an offence. (2) The relevant court must make a restraining order over the property to which the application relates if, having regard to the police officer’s affidavit supporting the application and any other evidence before the court— (a) the court is satisfied that there are reasonable grounds for the officer’s beliefs and suspicions stated in the affidavit; and (b) if an indictment has not been presented for the offence, or the offence is a serious offence of which the offender has been cleared—the court is satisfied that, within 6 weeks after the date of the order or (if allowed by the court) a longer period of not longer than 3 months after that date— (i) for an ordinary offence—it is intended to present an indictment against the offender for the offence (or a related relevant offence); or (ii) for a serious offence— (A) it is intended to present an indictment against the offender for the offence (or a related serious offence); or (B) it is intended to apply for a civil forfeiture order or a penalty order in relation to the offence (or a related serious offence). (3) The restraining order may do either or both of the following: (a) direct the public trustee and guardian to take control of the restrained property or stated restrained property;

(b) provide, under section 37 or section 38, for living and business expenses, or legal expenses, to be met out of the restrained Note For the commencement of a restraining order, see the Legislation Act, (4) The relevant court may refuse to make the restraining order if the DPP does not give the relevant court any undertaking that the court considers appropriate about the payment of damages or costs in relation to the making or operation of the order. (5) To remove any doubt— (a) a restraining order may be made under this section in relation to an interest (or interests) in property; and Note Property includes an interest in property, see the Legislation Act, dict, pt 1. (b) a restraining order may relate to 2 or more offences committed (or alleged to have been committed) by an offender; and Note Offender includes a corporation, see dict. (c) a restraining order may relate to the property of 2 or more people; and (d) for making a restraining order under this section, it is irrelevant whether there is any risk of the property being dealt with in a way that would defeat or hinder the purposes of this Act.

32 Making of restraining orders—specific serious offence not required etc (1) For section 31 and to remove any doubt, if the relevant court is satisfied that there are reasonable grounds for the police officer’s belief that a serious offence was committed by the offender within the relevant period mentioned in section 27 (Restraining orders—time for making certain applications), the court must not refuse to make a restraining order in relation to the offence only because the court is not satisfied— (a) that the officer had any belief that a particular serious offence was committed within the relevant period; or (b) that the officer had any belief about the particular day or time when the offender committed the offence within the relevant period; or (c) that there are reasonable grounds for any belief by the officer about anything mentioned in paragraph (a) or (b). (2) Also, for section 31 and to remove any doubt, the relevant court must not refuse to make a restraining order in relation to the offender only because— (d) a doubt is raised about whether the person committed the

32A Unexplained wealth restraining order—making (1) This section applies if an application is made under section 26A to a relevant court for an unexplained wealth restraining order. (2) The relevant court must make an unexplained wealth restraining order over the property to which the application relates if, having regard to the police officer’s affidavit supporting the application and any other evidence before the court, the court is satisfied there are reasonable grounds for the officer’s suspicions stated in the affidavit. (3) The restraining order may direct the public trustee and guardian to take control of the restrained property.

33 Restraining orders—contents (1) A restraining order must state that a person must not deal with the property stated in the order except in accordance with— (a) the order; or (b) another order under this Act of a relevant court; or (c) this Act. (2) A restraining order (other than an unclaimed tainted property restraining order) must also state— (a) that it is a restraining order under this Act; and (b) the person (or people) whose property it applies to; and (c) for each person to whose property it applies to—the property to which it applies, including whether it applies to property acquired after the making of the order; and

(d) if section 31 (2) (b) (Restraining orders over other property— making) applies to the restraining order—the applicable period under the paragraph; and Note The restraining order ends unless an indictment is presented or, for a serious offence, a forfeiture or penalty application is made, before the end of the stated period (see table 47 and table 48). (e) if the order directs the public trustee and guardian to take control of the restrained property or stated restrained property—the direction and the property to which it applies; and (f) if the relevant court making the order has given a direction under section 35 (Restraining order proceedings—restrictions on disclosure)— (ii) the effect of section 36 (Restraining orders—disclosure offences) in relation to the direction; and (g) if the order provides, under section 37 or section 38, for living and business expenses, or legal expenses, to be met out of the restrained property— (i) the kind of expenses that may be met out of the restrained property; and (ii) the period during which the expenses may be met out of the restrained property; and (iii) the maximum amount of the expenses that may be met out of the restrained property. (3) An unclaimed tainted property restraining order must also state— (a) that it is an unclaimed tainted property restraining order under this Act; and (b) the property to which it applies; and

(c) if the relevant court making the order has given a direction under section 35— (ii) the effect of section 36 in relation to the direction; and (d) that, unless a relevant court makes an order that stops the operation of the restraining order over the property, the property will be automatically forfeited under this Act to the Territory at the end of 14 days after the day the order is made. (4) A failure by a relevant court to comply with this section in relation to the restraining order does not invalidate the restraining order or any forfeiture order or automatic forfeiture made in relation to the property restrained under the restraining order.

34 Restraining orders—notice of making (1) If a court makes a restraining order over property, the DPP must give a copy of the order to— (a) for an unclaimed tainted property restraining order—anyone the DPP suspects may have an interest in the property; and (b) for any other restraining order—the owner of the restrained property and anyone else the DPP suspects may have an interest in the property. (2) A relevant court may order the DPP to— (a) give a copy of a restraining order, the application for the order or the supporting affidavit to anyone and may give directions about how any document is to be given to the person; or (b) give notice of the order to anyone and may give directions about how the notice is to be given.

(3) Subsections (1) and (2) have effect subject to any direction of the court under section 35.

35 Restraining order proceedings—restrictions on (1) On application by the DPP, a relevant court hearing an application for a restraining order may give directions prohibiting or restricting the publication or disclosure of 1 or more of the following: (a) the fact that an application for the order, or that a restraining order, has been made; (b) the application for the order; (c) the supporting affidavit for the order and any other affidavit filed in relation to the application; (d) any information about the proceeding (whether or not a hearing has been held); (e) any evidence given, statement made or thing done during the proceeding; (f) any information, document or thing derived from anything 1 that the application for the restraining order and a stated part of the supporting affidavit not be disclosed to the person against whom the restraining order is made until the court has decided an application for another restraining order against someone else’s property 2 that the supporting affidavit must be made available only to the offender’s lawyer (2) In deciding whether to give a direction under subsection (1), the court must have regard to whether the direction—

deciding whether to give a direction under subsection (1).

36 Restraining orders—disclosure offences copy of the restraining order to which the direction relates or otherwise); and copy of the restraining order to which the direction relates or otherwise); and and

leave, must be heard in closed court (see s (8)).

and

37 Payment of living and business expenses from restrained (1) A relevant court may, in a restraining order or an order under section 39 (Additional orders about restraining orders and restrained property) varying a restraining order, allow any of the following expenses to be met out of the restrained property of a person, or a stated part of the property: (a) the living and business expenses of the person (other than the person’s legal expenses in defending a criminal charge); (b) the living expenses of a dependant of the person. Note 1 For legal expenses in defending a criminal charge, see s 38. Note 2 For the meaning of dependant, see dict. (2) However, the court must not allow expenses to be met out of restrained property unless— (a) the person satisfies the court that— (i) the expenses are reasonable; and (ii) the expenses are necessary to avoid undue hardship to the person or the person’s dependants; and (iii) the expenses cannot be met out of property of the person not subject to a restraining order; and (b) the court is satisfied that any property to be released from restraint for the expenses does not have evidentiary value in any criminal proceeding; and (c) if the restrained property includes tainted property—the court is (i) the tainted property is not required to meet the expenses; or

(ii) if the tainted property is required to meet the expenses—it is just and equitable for the tainted property to meet the expenses. (3) When deciding whether expenses are reasonable, or necessary to avoid undue hardship, the court must take into account that— (a) a person should be able to— (i) satisfy the person’s essential physical and psychological needs; and (ii) have a minimum standard of living that is neither meagre nor luxurious; and (iii) participate in the life of the person’s community; and (iv) have nutritious food, access to transport or personal transportation, appropriate clothing for the place where the person lives, furniture and essential appliances; and (v) have equipment to participate in ordinary leisure activities; and (b) the purpose of allowing living and business expenses is not to avoid every hardship but only undue hardship to the person or the person’s dependants. (4) When determining undue hardship, the court must as far as practicable having regard to the minimum standard of living mentioned in subsection (3) (a) (ii), not take into account hardship arising from the loss of a previous standard of living to the extent that the previous standard of living was likely to have been the result of the commission of an offence, a material advantage derived from an offence or unexplained wealth. (5) For subsection (2) (b), the court must assume the property does not have evidentiary value unless the contrary is proved.

(6) A regulation may— (a) prescribe matters to which the court may, must or must not have regard for subsection (2) (a) (i) or (ii); and (b) prescribe, or make provision in relation to, the maximum amount of living or business expenses of a person that may be allowed (for a period or otherwise). (7) A regulation made for this section may apply, adopt or incorporate (with or without change) a provision of a law of the Commonwealth or a State, or an instrument, as in force from time to time. Note 1 The text of an applied, adopted or incorporated law or instrument, whether applied as in force from time to time or at a particular time, is taken to be a notifiable instrument if the operation of the Legislation Act, s 47 (5) or (6) is not disapplied (see s 47 (7)). Note 2 A notifiable instrument must be notified under the Legislation Act.

38 Payment of certain legal expenses from restrained (1) A relevant court may, in a restraining order or an order under section 39 (Additional orders about restraining orders and restrained property) varying a restraining order, allow a person’s legal expenses in defending a criminal charge to be met out of the restrained property of the person, or a stated part of the property. (2) However, the court must not allow the legal expenses to be met out of restrained property unless— (a) the person applies for an order for the legal expenses to be met out of restrained property; and (b) the application is supported by an affidavit of the person setting out all of the person’s interests in property, including any property of the person outside Australia, and the person’s liabilities; and

(c) the court is satisfied that— (i) the affidavit is a true statement of the person’s interests in property and the person’s liabilities; and (ii) the person has taken all reasonable steps to bring any property outside Australia within the jurisdiction of the court; and (iii) the legal expenses cannot be met out of property of the person not subject to a restraining order; and (iv) any property to be released from restraint for the expenses does not have evidentiary value in any criminal proceeding; and (d) if the restrained property includes tainted property—the court is (i) the tainted property is not required to meet the legal expenses; or (ii) if the tainted property is required to meet the expenses—it is just and equitable for the tainted property to meet the expenses. (3) For subsection (2) (c) (iv), the court must assume the property does not have evidentiary value unless the contrary is proved. (4) If the court makes or varies a restraining order that allows the legal expenses to be met out of restrained property, the court must include in the order conditions ensuring that— (a) restrained property is used only to meet legal fees, disbursements and out-of-pocket expenses incurred by the person in defending the criminal charge; and (b) all legal fees, disbursements and out-of-pocket expenses are properly and reasonably incurred by the person; and

(c) all legal fees are calculated in accordance with the scale of costs for criminal matters determined by the legal aid commission in accordance with the Legal Aid Act 1977, section 31C.

39 Additional orders about restraining orders and restrained (1) A relevant court may, when it makes a restraining order or at any later time before the order ends, make any additional order that the court considers appropriate in relation to the restraining order or restrained property (other than an order mentioned in subsection (2)). Examples of additional orders 1 an order varying the property subject to the restraining order (other than an order excluding property from the restraining order) 2 an order authorising the disposal of the property subject to the restraining order to satisfy a penalty order 3 an order varying any condition to which the restraining order is subject. 4 an order that living or business expenses of a person, or legal expenses of a person to defend a criminal charge, be met out of restrained property 5 an order for the carrying out of any undertaking about the payment of damages or costs given by the Territory in relation to the making or operation of the restraining order 6 an order for the examination of anyone before the court, or an officer of the court, about the affairs (including the nature and location of any property) of the owner of restrained property or of the offender 7 an order for the examination of anyone before the court, or an officer of the court, about any property that may be tainted property 8 an order directing the owner of the restrained property or anyone else to give to a stated person, within a stated period, a sworn statement about stated particulars of the restrained property 9 an order directing the registrar-general not to register any instrument affecting restrained property except in accordance with the order 10 an order directing the owner of restrained property or anyone else to do anything necessary or convenient to be done to allow the public trustee and guardian to take control of the property in accordance with the restraining order, including anything necessary or convenient to be done to bring the property within the jurisdiction

11 if the restraining order directs the public trustee and guardian to take control of property, an order regulating how the public trustee and guardian may exercise functions under the restraining order or an order deciding any question about the property Note For general provisions about additional orders under this section (which (2) However, the court must not make any of the following orders under subsection (1): (a) an order revoking or otherwise ending a restraining order; (b) an order for the extension of the period a restraining order is to remain in force; (c) an order for the exclusion of property from a restraining order. Note 1 For the revocation of a restraining order, see s 43 and s 44. Note 2 For the extension of the operation of a restraining order, see s 49. Note 3 For the exclusion of property from a restraining order, see pt 6. (3) Also, the court must not make an order that living or business expenses of a person, or legal expenses of a person to defend a criminal charge, be met out of restrained property unless the order is made in accordance with section 37 or section 38 (as appropriate). (4) If the DPP proposes to oppose an application by a person under this section for an additional order, the DPP must give the applicant, and anyone else to whom notice of the application was given, written notice of the grounds on which the application will be opposed. (5) To remove any doubt, an additional order under this section does not end only because the restraining order ends or the property to which the additional order relates ceases to be restrained property.

40 Contravention of additional orders under s 39 (a) a relevant court makes an additional order under section 39; and (b) the person has notice of the order (whether by being given a (c) the person contravenes the order.

41 Meaning of forfeiture or penalty application for div 4.3 forfeiture or penalty application means an application for a forfeiture order or a penalty order.

42 Restraining orders generally not time limited A restraining order operates (or continues to operate) until it ends under this division (including in accordance with an order under section 49 (Extension of time for restraining orders)).

43 Revocation or variation of restraining orders made without notice of application (1) A person with an interest in restrained property may apply to the court that made the restraining order for the revocation, by order, of the restraining order if the DPP did not give the person notice of the application for the order. (2) The court must not make an order revoking the restraining order unless it is satisfied that there were not and are no longer, or there are no longer, sufficient grounds for making the order.

(3) However, if the DPP has told the court that the restraining order applies to property that has evidentiary value in a criminal proceeding, the court must not revoke the restraining order without the DPP’s agreement but may, by order, vary the restraining order to exclude any part of the property that the DPP has told the court does not have evidentiary value. (4) If the DPP proposes to oppose an application by a person under this section for the revocation of a restraining order, the DPP must give the applicant, and anyone else to whom notice of the application was given, written notice of the grounds on which the application will be opposed.

44 Revocation or variation of restraining orders if security or undertakings given (1) The owner of restrained property may apply to the court that made the restraining order for the restraining order to be revoked or varied, by order, under this section. (2) The court must not make an order revoking the restraining order unless the DPP has told the court that the owner has given— (a) security satisfactory to the DPP to the value estimated by the DPP of any order that may be sought under this Act in relation to the offence in relation to which the order was made (and any related offence); or (b) an undertaking satisfactory to the DPP about the restrained (3) However, if the owner can only give security or an undertaking that partly satisfies the DPP, the court may, by order, vary the restraining order to exclude particular property in relation to which the DPP has told the court that satisfactory security or a satisfactory undertaking has been given.

(4) Also, if the DPP has told the court that the restraining order applies to property that has evidentiary value in a criminal proceeding, the court must not revoke the restraining order without the DPP’s agreement but may, by order, vary the restraining order to exclude any part of the property that the DPP has told the court does not have evidentiary value. (5) If the DPP proposes to oppose an application by a person under this section for the revocation of a restraining order, the DPP must give the applicant, and anyone else to whom notice of the application was given, written notice of the grounds on which the application will be opposed. (6) The court may order that the revocation or variation of a restraining order under this section takes effect at a stated time or on the happening of a stated event.

45 When restraining order over particular property ends (1) A restraining order over particular property ends— (a) if the restraining order stops applying to the property in accordance with an order under this Act (for example, an exclusion order); or (b) if the property is forfeited under this Act—when the property vests in law in the Territory and the public trustee and guardian takes control of the property; or (c) if the property is disposed of by the public trustee and guardian to satisfy a penalty order; or (d) when the restraining order ends under this division. Note On forfeiture, restrained property vests in the Territory. However, registrable property does not vest in law in the Territory until the Territory’s interest is registered in the appropriate register. Until then, it is vested in equity in the Territory (see s 109 and s 110).

(2) To remove any doubt, the ending of a restraining order over particular property does not affect the operation of the restraining order in relation to other property restrained under the order.

46 When unclaimed tainted property restraining order ends (1) An unclaimed tainted property restraining order over property ends if— (a) the restraining order stops applying to the property in accordance with an order under this Act (for example, an exclusion order); or (b) the automatic forfeiture of the property is fully satisfied. (2) If a person claims an interest in the property to which the unclaimed tainted property restraining order applies, the order does not cease to be an unclaimed tainted property restraining order, or cease to apply to the property, only because of the making of the claim. (3) The relevant court may, on the application of the DPP while the order is in force, order that the restraining order is to end earlier than otherwise provided for by this section.

47 When restraining order ends—ordinary offences order has been made in relation to an ordinary offence. (2) However, this section does not apply if the restraining order was also given in relation to a related serious offence, or is varied to apply to a related serious offence.

(3) The restraining order ends for the circumstances stated in table 47, column 2 at the time indicated for those circumstances in column 3. Note 1 The restraining order may continue to operate in relation to related ordinary offences (see s (6)). Note 2 For the ending of forfeiture and penalty orders for ordinary offences, see— • s 56 (When conviction forfeiture order ends) • s 98 (When penalty order ends). (4) A reference in table 47 to a person being convicted of the offence mentioned in subsection (1) includes a reference to the person being convicted of a related offence instead of the offence mentioned in subsection (1). (5) For table 47, items 4 and 6, if more than 1 forfeiture or penalty application is made within the period stated in the item, column 2, the restraining order ends at the latest time that it would end if any of those applications were the only forfeiture or penalty application (6) If, within the period stated in the restraining order under section 33 (2) (d) (Restraining order—contents), an indictment is presented against the offender for another ordinary offence or offences related to the offence mentioned in subsection (1) (the primary offence), the restraining order ends at the later of the following times: (a) the time that it would end if there were no related offences; (b) the latest time that it would end if— (i) the related offence or any of the related offences, taken by itself, were the primary offence; and (ii) there were no other offences in relation to which the restraining order had been made.

(7) The relevant court may, on the application of the DPP while the order is in force, order that the restraining order is to end earlier than otherwise provided for by this section. Table 47 Ending of restraining orders—ordinary offences item when restraining order ends 1 an indictment is not presented against the offender for the offence before the end of the period stated in the restraining order under section 33 (2) (d) end of the period stated in the restraining order under that paragraph 2 an indictment is presented against the offender for the offence before the end of the period stated in the restraining order under section 33 (2) (d), but the offender is cleared of the offence when the offender is cleared of the offence 3 the offender is convicted of the offence, the restraining order is made before the conviction, and no forfeiture or penalty application is made within 6 months after the day of the conviction end of the 6 month period

item when restraining order ends 4 the offender is convicted of the offence, the restraining order is made before the conviction, and a forfeiture or penalty application is made within 6 months after the day of the conviction at or after the finalisation of the proceeding in relation to the application, as follows: at the finalisation of the proceeding—at that time; at that time—when the forfeiture order or penalty order ends 5 the offender is convicted of the offence, the restraining order is made on the same day as, or after, the conviction, and no forfeiture or penalty application is made within 6 months after the day the restraining order was made end of the 6 month period 6 the offender is convicted of the offence, the restraining order is made on the same day as, or after, the conviction, and a forfeiture or penalty application is made within 6 months after the day the restraining order was made at or after the finalisation of the proceeding in relation to the application, as follows: at the time of the finalisation of the proceeding—at that time; at that time—when the forfeiture order or penalty order ends

48 When restraining order ends—serious offences order has been made in relation to a serious offence. (2) The restraining order ends for the circumstances stated in table 48, column 2 at the time indicated for those circumstances in column 3. Note 1 The restraining order may continue to operate in relation to related serious offences (see s (5)). Note 2 For the ending of forfeiture and penalty orders for serious offences, see— • s 56 (When conviction forfeiture order ends) • s 71 (When civil forfeiture order ends) • s 98 (When penalty order ends). Note 3 For the ending of automatic forfeiture for serious offences, see s 61. (3) A reference in table 48 to a person being convicted of the offence mentioned in subsection (1) includes a reference to the person being convicted of a related offence instead of the offence mentioned in subsection (1). (4) For table 48, item 4, if more than 1 forfeiture or penalty application is made before the restraining order ends under item 1, 2 or 3, the restraining order ends at the latest time that it would end if any of those applications were the only forfeiture or penalty application (5) If, within the period stated in the restraining order under section 33 (2) (d) (Restraining order—contents), an indictment is presented against the offender for another offence or offences related to the offence mentioned in subsection (1) (the primary offence), the restraining order ends at the later of the following times: (a) the time that it would end under this section if there were no related offences;

(b) the latest time that it would end under this section or section 47 (When restraining order ends—ordinary offences) if— (i) the related offence or any of the related offences, taken by itself, were the primary offence; and (ii) there were no other offences in relation to which the restraining order had been made. (6) The relevant court may, on the application of the DPP while the order is in force, order that a restraining order ends earlier than otherwise provided for by this section. Table 48 Ending of restraining orders—serious offences item when restraining order ends 1 an indictment is not presented against the offender for the offence, or a forfeiture or penalty application is not made, before the end of the period stated in the restraining order under section 33 (2) (d) end of the period stated in the restraining order under that paragraph 2 the offender is cleared or convicted of the offence, the restraining order is made before the offender is cleared or convicted of the offence, and no forfeiture or penalty application is made within 6 months after the day the offender is cleared or convicted following events applies: (a) end of the 6 month period; (b) when the automatic

item when restraining order ends 3 the offender is cleared or convicted of the offence, the restraining order is made on the same day as, or after, the offender is cleared or convicted of the offence, and no forfeiture or penalty application is made within 6 months after the day the offender is cleared or convicted following events applies: (a) end of the 6 month period; (b) when the automatic 4 a forfeiture or penalty application is made before the restraining order ends under item 1, 2 or 3 following events applies on or after the finalisation of the proceeding in relation to the application: penalty order is in force at the time of the finalisation of the proceeding—when the proceeding is finalised; penalty order is in force at that time—when the order ends; (c) if the offender has been convicted of the offence— when the automatic

48A When unexplained wealth restraining order ends (1) An unexplained wealth restraining order ends if— (a) no application for an unexplained wealth order has been made in relation to the person to whom the restraining order relates within 6 weeks after the restraining order was made; or

Section (b) an unexplained wealth order was applied for, the court refused to make the order and 1 of the following applies: (i) the time for an appeal against the refusal has ended without an appeal being lodged; (ii) an appeal against the refusal has lapsed; (iii) an appeal against the refusal has been dismissed and finally (2) An unexplained wealth restraining order also ends if— (a) an application for an unexplained wealth order was made within 6 weeks after the restraining order was made; and (b) the court made the unexplained wealth order; and (c) either— (i) the unexplained wealth order has been complied with; or (ii) an appeal against the unexplained wealth order has been upheld and finally disposed of.

49 Extension of time for restraining orders order is or has been in force in relation to the commission (or the alleged commission) of a relevant offence, despite anything else in (2) On the application of the DPP, the court that made the restraining order may make either or both of the following orders: (a) an order that the restraining order is to remain in force for a stated period (or as stated in the order); (b) an order that a restraining order that has ended is to be revived for a stated period (or as stated in the order).

(3) The order may be stated to have effect— (a) immediately; or (b) at a stated time; or (c) if a stated event happens. (4) The court may make an order under this section only if satisfied (a) any additional property to which the application relates was (or will be) derived from the offence, or identified, only after the restraining order ended (or would otherwise end); or (b) necessary evidence for the making of a forfeiture or penalty application has (or will) become available only after the restraining order ended (or would otherwise end); or (c) if an automatic forfeiture in relation to a serious offence ends because the offender is cleared of the offence—it is desirable in relation to an application for a civil forfeiture order or a penalty order under section 85 (Penalty orders—commission of serious offences); or (d) it is otherwise desirable having regard to the purposes of this Act.

50 Restraining orders—registration in statutory property registers (1) This section applies if a restraining order is over property that may be recorded in a statutory property register

Restraining orders—other matters Division 4.4 (2) The restraining order, or details of the restraining order, may be recorded in the register— (a) for a restraining order over land registered under the Land Titles Act 1925—on a responsible authority giving a copy of the restraining order to the registrar-general; or Note The registrar-general may, on receipt of the order, enter a caveat for the prevention of any fraud or improper dealing (see Land Titles Act 1925, s 14 (1) (h)). (b) in any other case—on application by a responsible authority. (3) Anyone who acquires an interest in the property after the recording of the restraining order in the register is taken to have notice of the restraining order at the time of acquisition. (4) If the property stops being restrained property, the responsible authority must— (a) for a restraining order over land registered under the Land Titles Act 1925—tell the registrar-general of the cancellation of the restraining order; or (b) in any other case—apply for the cancellation of the restraining order’s registration in the statutory property register. responsible authority means— (a) the DPP; or (b) if the public trustee and guardian has taken control of the property under this Act—the public trustee and guardian; or (c) for a registered interstate restraining order—anyone who is authorised under the corresponding law under which the order was made to register a restraining order, or details of a restraining order, in a statutory property register.

51 Penalty orders—execution against restrained property (1) A restraining order over the property of a person does not prevent the levying of execution against the property, entirely or in part, in satisfaction of a penalty order in force against the person. (2) However, the property must not be disposed of, or otherwise dealt with, except in accordance with an order of a relevant court under section 39 (1) (Additional orders about restraining orders and restrained property).

Conviction forfeiture orders Division 5.1

52 Meaning of conviction forfeiture order conviction forfeiture order means an order under section 54 (Conviction forfeiture orders—making) for the forfeiture to the Territory of tainted property in relation to a relevant offence.

53 Conviction forfeiture orders—application (1) The DPP may apply to a relevant court for a conviction forfeiture order against a person. (2) The application may be made before or after, or at the same time as, the person’s conviction for a relevant offence. (3) However, if the person has been convicted of the offence, the DPP must make the application within 2 years after the day of the conviction. Note The court may allow leave for an application to be made after the time fixed by this section in certain circumstances (see s 246).

54 Conviction forfeiture orders—making (1) On application under section 53, the court must make an order for the forfeiture to the Territory of tainted property in relation to the relevant offence if satisfied that— (a) the offender has been convicted of the offence; and (b) the offender has not been cleared of the offence; and (c) the property, or any of the property, to which the application relates is tainted property in relation to the offence. (2) If a court makes the order, it must state in the order— (a) the property to which it applies; and (b) what it considers to be the value of the property (other than money) to be forfeited to the Territory under the order at the time the order is made.

55 Conviction forfeiture orders—forfeiture (1) The property to which the conviction forfeiture order applies is forfeited to the Territory at the end of 14 days after the day the order is made, except so far as the property is excluded from forfeiture under an exclusion order. (2) However, if an application for an exclusion order in relation to the

Automatic forfeiture—conviction for serious offences Division 5.2

56 When conviction forfeiture order ends (1) A conviction forfeiture order ends if— (a) the offender is cleared of the offence to which the order relates, and all related offences (if any); or (b) the order is reversed or set aside on appeal; or (c) the order is fully satisfied. (2) The order is satisfied for a particular interest in forfeited property if the interest is bought back under section 127 (Buyback orders— buying interest in property).

Division 5.2 Automatic forfeiture—conviction for serious offences

57 Unclaimed tainted property restraining orders— non-application of div 5.2 This division does not apply to property restrained under an unclaimed tainted property restraining order. Note For the forfeiture of unclaimed tainted property, see div 5.3.

58 Automatic forfeiture of restrained property on conviction for serious offences (a) a person is convicted of a serious offence; and (b) a restraining order (other than an artistic profits restraining order) is made, whether before or after the conviction, over property in relation to the offence or a related serious offence committed by the person. (2) The restrained property is forfeited to the Territory at the end of whichever of the following periods applies (the relevant 14-day period), except so far as the property is excluded from forfeiture under an exclusion order: (a) if the restraining order was made before the conviction— 14 days after the day of conviction; (b) if the restraining order was made at the same time as or after the conviction—14 days after the day the restraining order comes into force. (3) However, if an application for an exclusion order in relation to the before the end of the relevant 14-day period, the property (or that part) is not forfeited until the proceeding in relation to the exclusion order is finalised.

Automatic forfeiture—conviction for serious offences Division 5.2

59 Automatic forfeiture—court order declaring property automatically forfeited (1) The DPP may apply to a relevant court for an order declaring that property has been automatically forfeited under this division. (2) If the relevant court is satisfied that the property has been automatically forfeited under this division, the court must make the order and state in the order the property to which it applies. (3) The registrar of the relevant court may exercise the functions of the court for this section.

60 Automatic forfeiture—court orders (1) A relevant court may, when it convicts a person of a serious offence or at any later time, make any order that it considers appropriate for giving effect to an automatic forfeiture of property. Examples of orders 1 an order for the examination of anyone before the court, or an officer of the court, about any property that might be forfeited because of the conviction 2 an order directing the owner of property that might be forfeited because of the conviction, or anyone else, to give to a stated person, within a stated period, a sworn statement about stated particulars of the property 3 an order directing the owner of property that might be forfeited because of the conviction, or anyone else, to do anything necessary or convenient to be done to allow the public trustee and guardian to take control of the property, including anything necessary or convenient to be done to bring the property within the jurisdiction 4 an order in relation to the registration of title to, or charges over, property under a territory law (2) The order may be made on the court’s initiative, or on the application of any of the following people: (a) the DPP; (b) the offender;

(c) the public trustee and guardian; (d) anyone with an interest in property to which the order relates; (e) anyone else with the court’s leave. (3) A person commits an offence if— (a) a relevant court makes an order under subsection (1) to give effect to an automatic forfeiture of property; and (b) the order requires the person to do, or not do, something stated in the order; and (c) the person has notice of the order (whether by being given a (d) the person contravenes the order.

61 When automatic forfeiture under div 5.2 ends (1) Automatic forfeiture under this division ends if— (a) the offender is cleared of the offence to which the forfeiture relates, and all related serious offences (if any); or (b) the automatic forfeiture is fully satisfied. (2) Automatic forfeiture is satisfied for a particular interest in forfeited property if the interest is bought back under section 127 (Buyback orders—buying interest in property).

Automatic forfeiture—unclaimed tainted property Division 5.3 Division 5.3 Automatic forfeiture—unclaimed tainted property

62 Forfeiture of unclaimed tainted property (1) This section applies if an unclaimed tainted property restraining order is made over property. (2) The restrained property is forfeited to the Territory at the end of 14 days after the day the restraining order comes into force, except so far as the property is excluded from forfeiture under an exclusion the property is excluded from forfeiture (see s 74 (c)). (3) However, if an application for an exclusion order in relation to the

63 When automatic forfeiture under div 5.3 ends Automatic forfeiture under this division ends if the automatic forfeiture is fully satisfied.

64 Artistic profits and unclaimed tainted property— non-application of div 5.4 This division does not apply to property restrained under— (a) an artistic profits restraining order; or (b) an unclaimed tainted property restraining order. Note 1 An artistic profits restraining order is made solely to preserve property to satisfy a penalty order for artistic profits in relation to an offence (see s 20). Note 2 Unclaimed tainted property is forfeitable under div 5.3.

65 Meaning of civil forfeiture order civil forfeiture order means an order under section 67 (Civil forfeiture orders—making) for the forfeiture to the Territory of restrained property in relation to the commission (or the alleged commission) of a serious offence.

66 Civil forfeiture orders—application (1) The DPP may apply to a relevant court for a civil forfeiture order for the forfeiture to the Territory of property restrained in relation to the commission (or the alleged commission) of a serious offence. (2) The application may be made— (a) at the same time as, or after, an application for a restraining order in relation to the offence; or (b) if a restraining order is in force in relation to the offence.

67 Civil forfeiture orders—making (1) This section applies if, on an application under section 66 for an order for the forfeiture to the Territory of restrained property, the court is satisfied on the balance of probabilities that a person (the offender) has committed a serious offence within whichever of the following periods applies (the relevant period): (a) 6 years before the day the application to restrain the property was made; (b) if an extended period for making the restraining order application was allowed under section 246 (Confiscation proceedings—time extensions for applications)—the total of the 6-year period and the extended period. Note 1 The court must be satisfied on the balance of probabilities about the commission of the offence because confiscation proceedings are civil, not criminal (see s 237). Note 2 A reference to a person generally includes a reference to a corporation as (2) If this section applies, the relevant court must order that the restrained property be forfeited to the Territory. (a) the property to which it applies; and (b) what the relevant court considers to be the value of the property (other than money) to be forfeited to the Territory under the order at the time the order is made; and

(c) if the relevant court making the order has given a direction under section 69 (Civil forfeiture order proceedings—restrictions on disclosure)— (ii) the effect of section 70 (Civil forfeiture orders—disclosure offences) in relation to the direction. (4) To remove any doubt, if the relevant court is satisfied that the offender committed a serious offence within the relevant period, the court must not refuse to make a civil forfeiture order only because it is not satisfied— (a) that a particular serious offence was committed by the offender within the relevant period; or (b) that the offence was committed on any particular day or time within the relevant period. (5) Also, to remove any doubt, the relevant court must not refuse to make a civil forfeiture order in relation to a serious offence only because— (d) a doubt is raised about whether the offender committed the

68 Civil forfeiture orders—forfeiture (1) The property to which the civil forfeiture order applies is forfeited to the Territory at the end of 14 days after the day the order is made, except so far as the property is excluded from forfeiture under an exclusion order. (2) However, if an application for an exclusion order in relation to the

69 Civil forfeiture order proceedings—restrictions on (1) On application by the DPP, a relevant court hearing an application for a civil forfeiture order may— (a) direct that the hearing of the application, or part of it, take place in closed court and give directions about who may be present; and (b) give directions prohibiting or restricting the publication or disclosure of 1 or more of the following: (i) the fact that an application for the order, or that a civil forfeiture order, has been made; (ii) the application for the order; (iii) any information about the proceeding (whether or not a hearing has been held);

(iv) any evidence given, statement made or thing done during the proceeding; (v) any information, document or thing derived from anything 1 that the application for the civil forfeiture order not be disclosed to the person against whom the civil forfeiture order is made until the court has decided an application for a restraining order against someone else’s property 2 that the supporting affidavit must be made available only to the offender’s lawyer (2) In deciding whether to give a direction under subsection (1), the court must have regard to whether the direction— deciding whether to give a direction under subsection (1).

70 Civil forfeiture orders—disclosure offences copy of the civil forfeiture order to which the direction relates or otherwise); and

copy of the civil forfeiture order to which the direction relates or otherwise); and and is to any of the following entities in the circumstances mentioned for the entity:

Note The application for leave, and any proceeding with the court’s leave, must be heard in closed court (see s (8)).

and

71 When civil forfeiture order ends (1) A civil forfeiture order ends if— (a) the order is set aside or discharged on appeal; or (b) the order is fully satisfied. (2) The order is satisfied for a particular interest in forfeited property if the interest is bought back under section 127 (Buyback orders— buying interest in property).

Note For general provisions about a proceeding for an exclusion order (which

72 Meaning of exclusion order exclusion order means an order under this part in relation to— (a) restrained property (other than restrained property that has been forfeited or used to satisfy an unexplained wealth order) or property in relation to which an application for a restraining order has been made; or (b) property in relation to which an application for a conviction forfeiture order has been made; or (c) property subject to forfeiture under this Act. Note 1 Property includes an interest in property, see the Legislation Act, dict, pt 1. Note 2 This part does not apply to forfeited property (see s 75 (4)). A person with an interest in forfeited property immediately before its forfeiture may apply for the return of the property or compensation for its value under a return or compensation order under div 9.5. Note 3 Property is forfeited 14 days after a forfeiture order or an automatic forfeiture applies to the property unless an application for an exclusion order is made, see pt 5 (Forfeiture of property).

73 When property is subject to forfeiture For this Act, property is subject to forfeiture if— (a) a forfeiture order made under this Act applies to the property and the property has not been forfeited; or (b) an automatic forfeiture under this Act applies to the property and the property has not been forfeited.

74 Effect of exclusion order An exclusion order for property has effect as follows: (a) for property in relation to which an application for a restraining order or conviction forfeiture order has been made—the property is excluded from restraint or forfeiture (as appropriate); (b) for restrained property (other than restrained property that has been forfeited or used to satisfy an unexplained wealth order)— the restraining order stops applying to the property; (c) for property subject to forfeiture—the property is excluded from forfeiture. Note This part does not apply to forfeited property (see s 75 (4)). A person with an interest in forfeited property immediately before its forfeiture may apply for the return of the property or compensation for its value under a return or compensation order under div 9.5.

75 Exclusion orders—application (a) restrained property (other than restrained property that has been forfeited or used to satisfy an unexplained wealth order) or property in relation to which an application for a restraining order has been made; or

(b) property in relation to which an application for a conviction forfeiture order has been made; or (c) property subject to forfeiture under this Act. Note See the notes to s 72. (2) A person claiming an interest in the property may apply to a relevant court for an exclusion order. (3) The application must be made— (a) if a restraining order or conviction forfeiture order has been applied for (but not made) in relation to the property—at the same time as, or after, the application is made for the order but before the order is made; or (b) if the property is restrained or subject to forfeiture—at any time before the property is forfeited or used to satisfy an unexplained wealth order. (4) To remove any doubt, an application for an exclusion order cannot be made in relation to property that has been forfeited or used to satisfy an unexplained wealth order.

76 Making of exclusion orders—ordinary offences (a) a restraining order in relation to the property has been applied for under section 26 (Restraining orders over other property— application) in relation to an ordinary offence; or (b) the property has been restrained (but not forfeited) under an order under section 31 (Restraining orders over other property— making) in relation to an ordinary offence; or (c) a conviction forfeiture order for an ordinary offence has been applied for in relation to the property; or

(d) the property is subject to forfeiture in relation to an ordinary (2) If the application is made by an offender, the relevant court must not make an exclusion order for the property unless the court is satisfied that the property— (a) is not tainted property in relation to any offence against a (b) is not required to be restrained to satisfy a penalty order; and (c) does not have evidentiary value in any criminal proceeding. (3) However, if the court is satisfied that the property is not tainted property as mentioned in subsection (2) (a), but considers that the property (or any part of the property) may be required to be restrained to satisfy a penalty order, the court must make an exclusion order declaring that the property (or part)— (a) is not subject to forfeiture under a conviction forfeiture order; but (b) is to remain restrained for the purpose of satisfying a penalty (4) If the application is made by a person other than an offender, the court must not make an exclusion order for the property unless it is satisfied (b) the applicant was not a party to the relevant offence or any related offence; and

(c) the interest is not subject to the effective control of an offender; and (d) the interest is not tainted property in relation to the relevant offence or any related offence; and indirectly, from the offender—the interest was acquired acquired by the applicant; and (5) An exclusion order must state the property to which it applies.

77 Making of exclusion orders—serious offences (a) a restraining order in relation to the property has been applied for under section 26 (Restraining orders over other property— application) in relation to a serious offence; or (b) the property has been restrained (but not forfeited) under an order under section 31 (Restraining orders over other property— making) in relation to a serious offence; or (c) a conviction forfeiture order for a serious offence has been applied for in relation to the property; or (d) the property is subject to automatic forfeiture under division 5.2 (Automatic forfeiture—conviction for serious offences).

(2) If the application is made by an offender, the relevant court must not make an exclusion order for the property unless the court is satisfied that the property— (a) was lawfully acquired by the offender; and (c) is not required to be restrained to satisfy a penalty order; and (d) does not have evidentiary value in any criminal proceeding. (3) However, if the court is satisfied that the property was lawfully acquired, and is not tainted property as mentioned in subsection (2) (b), but considers that the property (or any part of the property) may be required to be restrained to satisfy a penalty order, the court must make an exclusion order declaring that the property (or part)— (a) is not subject to automatic forfeiture or to forfeiture under a forfeiture order; but (b) is to remain restrained for the purpose of satisfying a penalty (4) If the application is made by a person other than an offender, the court must not make an exclusion order for the property unless it is satisfied (b) the applicant was not a party to the relevant serious offence or any related offence; and

(c) the interest is not subject to the effective control of an offender; and (d) the interest is not tainted property in relation to the relevant serious offence or any related offence; and indirectly, from the offender—the interest was acquired acquired by the applicant; (5) An exclusion order must state the property to which it applies.

77A Making of exclusion orders—unexplained wealth (a) an unexplained wealth restraining order has been applied for in relation to the property; or (b) the property has been restrained under an unexplained wealth (2) If the application is made by the person in relation to whom the unexplained wealth restraining order has been made or is sought (the relevant person), the relevant court must not make an exclusion order for the property unless the court is satisfied that the property— (a) was lawfully acquired by the relevant person; and

(c) is not required to be restrained to satisfy an unexplained wealth order; and (d) does not have evidentiary value in any criminal proceeding. (3) If the application is made by someone other than the relevant person, the court must not make an exclusion order for the property unless it (b) the applicant was not a party to the relevant serious criminal activity or any related serious criminal activity; and (c) the interest is not subject to the effective control of the relevant (d) the interest is not tainted property in relation to a serious offence; and indirectly, from the relevant person—the interest was acquired acquired by the applicant; and (4) An exclusion order must state the property to which it applies.

78 Making of exclusion orders—unclaimed tainted property unclaimed tainted property if— (a) an unclaimed tainted property restraining order has been applied for in relation to the property; or

(b) the property has been restrained under an unclaimed tainted property restraining order (but not forfeited); or (c) the property is subject to automatic forfeiture under division 5.3 (Automatic forfeiture—unclaimed tainted property). (2) The court must not make an exclusion order unless the court is (a) the applicant for the exclusion order has an interest in the property; and (b) the interest was lawfully acquired by the applicant; and (c) the interest is not tainted property in relation to any offence against a territory law, or a law of the Commonwealth, a State, another Territory or a foreign country; and (d) the interest is not required to be restrained to satisfy a penalty order; and (e) the property does not have evidentiary value in any criminal (3) An exclusion order must state the property to which it applies.

Benefits Division 7.1

79 Meaning of commission of serious offence for pt 7 commission, of a serious offence, includes the alleged commission of the offence.

80 Meaning of benefits derived by an offender benefits, derived by an offender from the commission of an offence, means— (a) tainted property, except tainted property that was used, or was intended by the offender to be used, in relation to the commission of an offence, and property derived by anyone from that property; or (b) artistic profits allowed under section 81 (3) in relation to the (c) any service or other advantage derived by the offender from the commission of the offence. Example for par (c) Mr Tres Adventuresome ran a small wholesale food business before becoming involved in illegal activity. He started to trade in gourmet foods as a cover for the commission of several offences involving the importation of cannabis into Australia. His move into the gourmet food trade could not have been achieved, and the offences could not have been committed, without key contacts (in the legitimate food trade) made by him. Because of the contacts, his legitimate business expanded considerably.

In the 12 months ending immediately before the commission of the earliest offence, Mr Adventuresome’s income from the business was $50 000. In the 12 months after then, his income from legitimate business activity (unrelated to the offences) was $200 000. This increase in activity is entirely because of continuing (legitimate) working relationships with those key contacts. The difference of $150 000 is the value of a benefit derived from the commission of the offences by Mr Adventuresome because his relationship with the key contacts is an advantage derived by him from their commission. Note 1 Derived includes obtained because of an understanding or a particular outcome being made known (see s 12). Note 2 For the assessment of the value of benefits, see div 7.3.

81 Meaning of artistic profits artistic profits, derived by an offender from the commission of an offence, means property, or any service or other advantage, derived from the commercial exploitation of— (a) the notoriety of the offender, or someone else involved in the commission of the offence (another involved person), that results from the offence; or (b) the depiction of the offence or the circumstances surrounding the offence; or (c) an expression of the thoughts, opinions or emotions of the offender, or another involved person, about the offence. (2) The commercial exploitation may be by any means, including, for example, in— (a) a visual recording (for example, a film, slide, videotape, videodisc or anything else from which a visual image can be produced); or (b) a sound recording (for example, a compact disc, tape, record or anything else from which words or sounds can produced); or

Benefits Division 7.1 (c) printed material (for example, a book, newspaper, magazine or any other written or pictorial matter); or (d) a radio or television production; or (e) live entertainment of any kind (for example, a public presentation or speech). (3) A relevant court must allow artistic profits as benefits for section 80 (b) (Meaning of benefits derived by an offender), unless it is satisfied that it would not be in the public interest to do so. (4) In deciding whether it would not be in the public interest to allow artistic profits as benefits, the court must have regard to the following matters: (a) the purposes of this Act; (b) whether the commercial exploitation has any general social or educational value; (c) the nature and purposes of the commercial exploitation, including its use for research, educational or rehabilitation purposes; (d) the seriousness of the offence; (e) how long ago the offence was committed. (5) Subsection (4) does not limit the matters to which the court may have regard.

Note For general provisions about a proceeding for a penalty order (which is a confiscation proceeding—see s 236), see pt 14.

82 Meaning of penalty order penalty order means an order under this division for the payment by an offender of the value of benefits derived by an offender from the commission of an offence.

83 Penalty orders—application (1) The DPP may apply to a relevant court for a penalty order in relation to the commission of a relevant offence by an offender. Note 1 Commission, of a serious offence, includes the alleged commission of the offence (see s 79). Note 2 Offender includes a corporation, see dict. (2) The application may be made before or after, or at the same time as, any conviction of the offender for the offence. (3) However, if the person has been convicted of the offence, the DPP must make the application within 2 years after the day of the conviction. Note The court may allow leave for an application to be made after the time fixed by this section in certain circumstances (see s 246). (4) Subsection (3) does not apply to an application for an artistic profits

84 Penalty orders—offenders convicted of ordinary offences (1) On application under section 83, the relevant court must make an order under this section for the payment by the offender of the value of benefits derived by the offender from the commission of an ordinary offence if satisfied that— (a) the offender has been convicted of the offence or a related ordinary offence; and (b) the offender has not been cleared of the offence of which the offender was convicted. (2) To remove any doubt, a relevant court may make an order under this section that relates only to artistic profits.

85 Penalty orders—commission of serious offences (1) On application under section 83, the court must make an order under this section for the payment by the offender of the value of benefits derived by the offender from the commission of a serious offence if the court is satisfied on the balance of probabilities— (a) for an application for a penalty order that relates only to artistic profits—that the offender committed a serious offence at any time; and (b) for any other application—that the offender committed a serious offence within the relevant period. Note 1 For the meaning of relevant period, see s (5). Note 2 The court must be satisfied on the balance of probabilities about the commission of the offence because confiscation proceedings are civil, not criminal (see s 237).

(2) To remove any doubt, if the relevant court is satisfied that the offender committed a serious offence within the relevant period, the court must not refuse to make a penalty order only because it is not satisfied— (a) that a particular serious offence was committed by the offender within the relevant period; or (b) that the offence was committed on any particular day or time within the relevant period. (3) Also, to remove any doubt, the relevant court must not refuse to make a penalty order in relation to the serious offence only because— (d) a doubt is raised about whether the offender committed the (4) Further, to remove any doubt, the relevant court must not refuse to make a penalty order only because— (a) a relevant court had previously made a penalty order under this section in relation to the offender for the same serious offence (or a related offence); and (b) the order had later ended because the offender was cleared of the Note The earlier penalty order would have ended when the offender was cleared (see s 98 (a)).

relevant period means— (a) if a restraining order is in force over any property in relation to the serious offence— (i) 6 years before the day the application to restrain the property was made; or (ii) if an extended period for making the restraining order application was allowed under section 246 (Confiscation proceedings—time extensions for applications)—the total of the 6-year period and the extended period; or (b) if a restraining order is not in force over any property in relation to the serious offence— (i) 6 years before the day the application for the penalty order was made; or (ii) if an extended period for making the penalty order application was allowed under section 246—the total of the 6-year period and the extended period.

86 Penalty orders—amount of penalty (1) In making a penalty order in relation to an offence, the court must— (a) assess under division 7.3 (Value of benefits) the value of any benefits (the assessed value) derived by the offender from the commission of the offence and any related offence; and (b) order the offender to pay the Territory the amount worked out under subsection (2). (2) The amount payable under the penalty order is the assessed value less any amount by which the assessed value is reduced under subsection (3).

(3) The assessed value in relation to the offence or any related offence may be reduced if the court is satisfied that it is just and equitable that the assessed value should be reduced by any of the following amounts: (a) the value of property subject to forfeiture under this Act or a corresponding law; Note For the meaning of subject to forfeiture, see s 73. (b) the value of property forfeited under this Act or a corresponding law; (c) the amount of any other penalty order, or any other financial penalty (however described) under a corresponding law; (d) any amount payable by the offender under a reparation order under the Crimes (Sentencing) Act 2005, or any corresponding order made under the law of the Commonwealth, a State or another Territory; (e) any amount payable by the offender for restitution, compensation or damages, other than any fine imposed by a court; (f) any amount of tax payable under a law of the Territory, the Commonwealth, a State, another Territory or a foreign country in relation to the benefits.

87 Penalty orders—contents (1) A penalty order must state— (a) the amount of the penalty payable under the order; and (b) the person by whom the penalty is payable. (2) A failure by a relevant court to comply with this section does not invalidate the penalty order or any action by anyone to satisfy the penalty order.

88 Penalty orders—enforceable as judgment debt The amount ordered to be paid by a relevant court under a penalty order is a judgment debt owing to the Territory. Note Any restrained property is automatically charged with the amount of the penalty order, and may be sold to satisfy the order (see div 7.4).

89 Penalty orders—variation for reassessed value of benefits On application by the person by whom the penalty under a penalty order is payable or the DPP, a relevant court may make an order varying the order to reflect the value of the relevant benefits as reassessed at the time the varying order is made. 1 The amount of the penalty order is reduced by the value of forfeited property (see s 86 (3) (b)). The order for the forfeiture is overturned by a court in a later proceeding. The relevant court may vary the penalty order to increase the amount of the penalty order by the value of the forfeited property.

2 The amount of the penalty order is reduced by an amount of tax payable by the offender in relation to a benefit (see s 86 (3) (f)). The amount of tax is reduced on a review by the commissioner of taxation. The relevant court may vary the penalty order to increase the amount of the penalty order by the reduced amount of tax. 3 If, in example 2, the amount of the tax payable had been increased on review, the court may vary the penalty order to reduce the amount of the penalty order by the amount of the increased tax.

90 Meaning of narcotic substance and property for div 7.3 narcotic substance— (a) see the Customs Act 1901 (Cwlth), section 4; and (b) includes anything prescribed by regulation for this definition; but (c) does not include cannabis food products. property, of an offender, includes— (a) property subject to the effective control of the offender; and (b) property that, immediately before it vested in the trustee for the property under the Bankruptcy Act 1966 (Cwlth), was the offender’s property. cannabis food product—see the Drugs of Dependence Act 1989, section 6.

91 Presumed value of benefits—ordinary offence (1) This section applies to the assessment of the value of benefits derived by an offender from the commission of an ordinary offence (or ordinary offences). (2) The value of the benefits derived by the offender from the commission of the offence (or offences) is— (a) if evidence is given about any increase in value of the offender’s property since immediately before the offence (or the earliest offence) was committed—taken to be not less than the amount of the greatest increase in value of which evidence is given; and (b) in any case—taken to include the value of any narcotic substance to which the offence (or offences) relates. Example for par (a) An offender has committed an ordinary offence. Just before beginning to commit the offence, the value of the offender’s property was $50 000. Two months after the offence began to be committed, the value of the offender’s property was $150 000. At the time of the application for the penalty order, however, the offender’s property was only worth $75 000. The ‘greatest increase’ in the total value of the offender’s property since immediately before the offence was committed is $100 000 ($150 000 minus $50 000). Note For the valuation of narcotic substances, see s 93 (3) and (4). (3) However, the value of the benefits is taken not to include any part (or all) of the increase in value if the offender satisfies the court that the part (or all) of the increase was from either— (a) property that— (i) was lawfully acquired by the offender; and (ii) is not tainted property in relation to any offence against a territory law, or a law of the Commonwealth, a State, another Territory or a foreign country; or

(b) benefits that were lawfully acquired by the offender. (4) This section does not apply in relation to a penalty order relating only to artistic profits.

92 Presumed value of benefits—serious offence (1) This section applies to the assessment of the value of benefits derived by an offender from the commission of a serious offence (or serious offences). Note Commission, of a serious offence, includes the alleged commission of the offence (see s 79). (2) The value of the benefits derived from the offence (or offences) is taken to include the following: (a) the value of all of the offender’s property on the day the application was made; (b) the value of any other property held by the offender within the shorter of the following periods: (i) between the day the offence (or the earliest offence) was committed and the day the application was made; (ii) 6 years immediately before the day the application was made; (c) the value of any narcotic substance to which the offence (or offences) relate; Note For the valuation of narcotic substances, see s 93 (3) and (4). (d) all of the person’s expenditure during the relevant period under paragraph (b) (other than expenditure to the extent that it resulted in the acquisition of property mentioned in paragraph (a) or (b)).

(3) However, subsection (2) does not apply to particular property if the offender satisfies the court that the property— (a) was lawfully acquired by the offender; and Territory or a foreign country. (4) Also, subsection (2) does not apply to particular expenditure if the offender satisfies the court that the expenditure— (a) was derived from property or benefits lawfully acquired by the offender; and (b) the property from which the expenditure was derived is not tainted property in relation to any offence against a territory law, or a law of the Commonwealth, a State, another Territory or a foreign country. (5) For subsection (2) (b) (i), if a serious offence was committed over more than 1 day, the reference in the subparagraph to the day the offence was committed is a reference to the day the offence was begun to be committed. (6) This section does not apply in relation to a penalty order relating only to artistic profits.

93 Value of benefits—relevant matters (1) In assessing the value of a benefit derived from the commission of an offence and any related offences, the relevant court may have regard to any relevant matters. Examples of relevant matters 1 an increase in the income or profits of the offender in comparable periods before and after the offence was committed (see s 80, example for par (c)) 2 an increase in the value of property held by the offender because of the benefit, taking into account any relevant variation in the purchasing power of money 3 the value of the offender’s property before, during and after the commission of the offence 4 the income and expenditure of the offender before, during and after the commission of the offence 5 the part of the benefit derived from the commission of the offence and the part derived from other sources (2) The court must assess the value of a benefit by reference to the highest value the benefit has had since the commission of the offence or a related offence, unless the court is satisfied that the benefit should be valued differently having regard to the purposes of this Act. 1 An offender derives a benefit worth $10 000 from the commission of an offence. If the benefit had been derived at the time of valuation for a penalty order proceeding 2 years later, the benefit would have been worth $11 000 (because of inflation). The court may assess the value of the benefit as $11 000 rather than $10 000. 2 The offence to which benefits relate is an ordinary offence. However, the offender later committed a related offence that was a serious offence. The court may have regard to the highest value of the benefits since the commission of the ordinary offence.

(3) At the hearing of an application for a penalty order, a law enforcement officer who is experienced in the investigation of narcotic offences may testify, to the best of the officer’s information, knowledge and belief— (a) in relation to the amount that was the market value of a narcotic substance at a particular time or during a particular period; or (b) in relation to the amount, or the range of amounts, ordinarily paid at a particular time or during a particular period, for the doing of anything in relation to a narcotic substance. (4) The law enforcement officer’s testimony under subsection (3)— (a) is admissible at the hearing despite any rule of law or practice about hearsay evidence; and (b) is prima facie evidence of the matters testified. law enforcement officer means— (a) a police officer; or (b) an officer of Customs under the Customs Act 1901 (Cwlth).

94 Creation of penalty charge over restrained property (1) This section applies if, in relation to an offence— (a) a restraining order is made; and (b) a penalty order is made. (2) On the making of the later of the orders, all of the restrained property is automatically charged to secure the payment to the Territory of the amount of the penalty order. Note 1 An interstate penalty charge is taken to be a penalty charge under this Act (see s 139). Note 2 If the penalty charge is over restrained property that may be recorded in a statutory property register, details of the restraining order may be recorded in the register under s 50. (3) If the restraining order is varied after the penalty order is made to add more property, the additional property is also automatically charged to secure payment to the Territory of the amount of the penalty order. (4) A charge on property created by this section (a penalty charge)— (a) is subject to every encumbrance on the property that came into existence before the charge and that would have priority over the charge if this subsection had not been enacted; and (b) has priority over all other encumbrances; and (c) is a statutory interest of a kind to which the Personal Property Securities Act 2009 (Cwlth), section 73 (2) applies; and (d) is not affected by any change in the ownership of the property unless the change in ownership ends the penalty charge under section 95 (c) or (d).

Satisfaction of penalty order Division 7.4

95 When penalty charge over property ends A penalty charge over property ends when the earliest of the following events happens: (a) the penalty order for which the charge was created ends; Note For when a penalty order ends, see s 98. See also the example to (b) the restraining order over the property ends; Note For when restraining orders end, see div 4.3. See also the example to this section. (c) the property is sold, or otherwise disposed of, with the consent of— (i) the relevant court that made the penalty order; or (ii) if a trustee (including the public trustee and guardian) controls the property—the trustee; (d) the property is sold to a purchaser who— (i) buys the property honestly and for sufficient consideration; and (ii) at the time of the purchase, has no notice of the charge. Example of end of restraining order and penalty order If a penalty order is made in relation to an ordinary offence of which the offender was convicted, both the restraining order and the penalty order end if the conviction is later quashed (see s 47 and s 98). Note If the restraining order over the charged property is registered in a statutory property register, anyone who buys the property is taken to have notice of the charge (see s 50 (3)).

96 Power to satisfy penalty order (1) A penalty order in relation to an offence authorises the public trustee and guardian to satisfy the order out of any property restrained for the offence (including any property that becomes restrained after the order is made). Note 1 The penalty order may also be enforced as a judgment debt (see s 88). Note 2 An amount received by the public trustee and guardian to satisfy the penalty order must be paid into the confiscated assets trust fund (see s 131). Note 3 An interstate penalty charge is taken to be a penalty charge under this Act (see s 139). (2) To satisfy the penalty order, the public trustee and guardian may sell or otherwise dispose of restrained property that is not money in any way the public trustee and guardian considers appropriate. Note The money realised by the public trustee and guardian from the disposal of property must be paid into the be paid into the confiscated assets trust fund (see s 131 and dict, def fully satisfied, par (b)). (3) However, the public trustee and guardian must not sell or otherwise dispose of restrained property to satisfy the order until— (a) all confiscation proceedings (including forfeiture proceedings) in relation to the property have been finalised; and (b) all proceedings in relation to the offender’s conviction for the offence are finalised. Note 1 For the meaning of confiscation proceedings, see s 236. Note 2 For when confiscation and criminal proceedings are finalised, see s 18. Note 3 If the offender is acquitted on appeal, the restraining order will end, and the penalty charge ends under s 95. (4) The penalty order also authorises the public trustee and guardian or anyone else named in the order (an authorised agent) to sign any instrument necessary or convenient for the disposal of restrained

End of penalty orders Division 7.5 (5) An instrument signed by an authorised agent has the same effect as if it were signed by the person who owned the property before it was

97 Public trustee and guardian to repay any amount surplus to satisfying penalty order If the amounts paid into the trust fund to satisfy a penalty order are more than is required to fully satisfy the order, the public trustee and guardian must pay the surplus amount to the person against whom the order was made.

Division 7.5 End of penalty orders

98 When penalty order ends A penalty order ends if— (a) for a penalty order made under section 84 (Penalty orders— offenders convicted of ordinary offences)—the offender is cleared of the offence (or offences) to which the penalty order relates, and all related offences (if any); or (b) the order is reversed or set aside on appeal; or (c) the order is fully satisfied. Note 1 For the meaning of fully satisfied, see dict. Note 2 If the order ends because it was made because of the conviction of the offender for a serious offence, and the offender is cleared, a further penalty order may be made against the offender (see s 85 (4)).

98A Meaning of unexplained wealth order unexplained wealth order means an order under this part for the payment by a person of an amount assessed by a court, in accordance with section 98E, as the value of the person’s unexplained wealth.

98B Unexplained wealth orders—application The DPP may apply to a relevant court for an unexplained wealth order in relation to a person.

98C Unexplained wealth order—affidavit supporting (1) If an unexplained wealth restraining order has not been made in relation to a person the subject of an application under section 98B, an affidavit by a police officer supporting the application for an unexplained wealth order against the person must state that the police officer suspects that— (a) a person’s total wealth exceeds the value of the person’s wealth that was lawfully acquired; and (b) the whole or any part of the person’s wealth was derived from

Making unexplained wealth orders Division 7A.2 (2) Subsection (1) (b) does not require the police officer to specify in the affidavit a particular offence for serious criminal activity, and it is sufficient if the police officer suspects and the affidavit describes the nature of the activity in general terms. (3) The affidavit must state, for the property mentioned in the (a) that the officer suspects that the property is either the property of the person in relation to whom the order is sought or the property of someone else; and effective control of the person in relation to whom the order is sought. (4) The affidavit must state the grounds for each belief or suspicion of

98D Unexplained wealth orders—making (1) On application under section 98B, the relevant court must make an unexplained wealth order against a person if the court is not satisfied that the whole or any part of the person’s wealth was not derived from (2) However, the court may refuse to make an unexplained wealth order or may reduce the amount that would otherwise be payable as assessed, if the court, having regard to the purposes of this Act, thinks it is in the public interest to do so.

(3) A decision of the court to refuse to make an unexplained wealth order or to reduce an amount that would otherwise be payable as assessed is not in the public interest if based only on 1 or more of the following: (a) a specific serious offence has not been particularised or proved to be associated with the person’s unexplained wealth; (b) the person or the person’s dependants will not have the same standard of living as a result of the order or reduction. (4) For subsection (1), wealth may be derived before the commencement of this section. (5) In making an unexplained wealth order, the relevant court must not order the person to pay the Territory an amount that is more than the person’s unexplained wealth assessed under section 98E.

98E Unexplained wealth orders—assessment of unexplained wealth (1) This section applies for the purpose of making an assessment of the unexplained wealth of a person against whom an unexplained wealth order is made. (2) The unexplained wealth, of a person, is the amount that in the opinion of a relevant court is— (a) the difference between— (i) the person’s total wealth; and (ii) the sum of the values of the property that the court is satisfied, on the balance of probabilities, was not derived from serious criminal activity; and

Making unexplained wealth orders Division 7A.2 (b) less an amount equal to whichever of the following applies to the person: (i) the value of any property the person forfeited under a forfeiture order; Note A registered interstate forfeiture order is taken to be a forfeiture order under this Act (see s 139). (ii) the sum of any amounts payable by the person under a penalty order or an interstate penalty order. (3) In a proceeding against a person for an unexplained wealth order, the burden of proof is on the person to prove that— (a) the person’s wealth was not derived from serious criminal activity; and (b) an order mentioned in subsection (2) (b) applies to the person. (4) When working out the value of property for this section, the value is— (a) for wealth that has been consumed or otherwise disposed of— the greater of— (i) the value at the time the wealth was acquired; and (ii) the value immediately before the wealth was consumed or disposed of; or (b) in any other case—the greater of— (i) the value at the time the wealth was acquired; and (ii) the value at the time the application for the unexplained wealth order was made. (5) In assessing the unexplained wealth of a person, the relevant court is not required to consider any wealth of which the DPP has not provided evidence.

98F Unexplained wealth orders—hardship relief (1) A relevant court making an unexplained wealth order in relation to a person may make another order directing the Territory, once the unexplained wealth order is fully satisfied, to pay an amount (a relief amount) decided by the court to a dependant of the person if the court (a) the unexplained wealth order would cause undue hardship to the dependant; and (b) the amount would relieve the hardship; and (c) if the dependant is at least 18 years old—the dependant had no knowledge of the person’s conduct that is the subject of the unexplained wealth order. (2) When deciding the relief amount, the court— (a) must only allow an amount to assist the dependant to avoid undue hardship for a period in which the dependant could not reasonably be expected to meet the dependant’s reasonable living expenses; and (b) must as far as practicable, having regard to the minimum standard of living mentioned in section 37 (3) (a) (ii), when determining undue hardship not take into account hardship arising from the loss of a previous standard of living of the dependant to the extent that the previous standard of living was likely to have been the result of unexplained wealth. (3) An amount decided by the court must not be more than the value of the person’s unexplained wealth. (4) An order under this section may relate to more than 1 of the person’s dependants. Note For the meaning of dependant, see dict.

Satisfaction of unexplained wealth order Division 7A.3

Division 7A.3 Satisfaction of unexplained wealth order

98G Creation of unexplained wealth charge over restrained (1) This section applies if, in relation to a person— (a) a restraining order is made; and (b) an unexplained wealth order is made. (2) On the making of the later of the orders, all of the restrained property is automatically charged to secure the payment to the Territory of the amount of the unexplained wealth order. Note 1 An interstate unexplained wealth order is taken to be an unexplained wealth order under this Act (see s 139). Note 2 If an unexplained wealth order is over restrained property that may be recorded in a statutory property register, details of the restraining order may be recorded in the register under s 50. (3) If the restraining order is varied after the unexplained wealth order is made to add more property, the additional property is also automatically charged to secure payment to the Territory of the amount of the unexplained wealth order. (4) A charge on property created by this section (an unexplained wealth charge)— (a) is subject to every encumbrance on the property that came into existence before the charge and that would have priority over the charge if this subsection had not been enacted; and (b) has priority over all other encumbrances; and (c) is a statutory interest of a kind to which the Personal Property Securities Act 2009 (Cwlth), section 73 (2) applies; and

Division 7A.3 Satisfaction of unexplained wealth order (d) is not affected by any change in the ownership of the property unless the change in ownership ends the unexplained wealth charge under section 98H (c) or (d).

98H When unexplained wealth charge over property ends An unexplained wealth charge over property ends when the earliest of the following events happens: (a) the unexplained wealth order for which the charge was created ends; Note For when an unexplained wealth order ends, see s 98L. (b) the restraining order over the property ends; Note For when restraining orders end, see s 48A. (c) the property is sold, or otherwise disposed of, with the consent of— (i) the relevant court that made the unexplained wealth order; or (ii) if a trustee (including the public trustee and guardian) controls the property—the trustee; (d) the property is sold to a purchaser who— (i) buys the property honestly and for sufficient consideration; and (ii) at the time of the purchase, has no notice of the charge.

98I Unexplained wealth orders—enforceable as judgment debt The amount ordered to be paid by a relevant court under an unexplained wealth order is a judgment debt owing to the Territory. Note Any restrained property is automatically charged with the amount of the unexplained wealth order, and may be sold to satisfy the order (see s 98G).

Satisfaction of unexplained wealth order Division 7A.3

98J Power to satisfy unexplained wealth order (1) An unexplained wealth order authorises the public trustee and guardian to satisfy the order out of any property restrained for the order (including any property that becomes restrained after the order is made). Note 1 An amount received by the public trustee and guardian to satisfy the unexplained wealth order must be paid into the confiscated assets trust fund (see s 131). Note 2 An interstate unexplained wealth order is taken to be an unexplained wealth order under this Act (see s 139). (2) To satisfy the unexplained wealth order, the public trustee and guardian may sell or otherwise dispose of restrained property that is not money in any way the public trustee and guardian considers appropriate. Note The money realised by the public trustee and guardian from the disposal of property must be paid into the confiscated assets trust fund (see s 131 and dict, def fully satisfied, par (b)). (3) However, the public trustee and guardian must not sell or otherwise dispose of restrained property to satisfy the order until all confiscation proceedings, including forfeiture proceedings, in relation to the property have been finalised. Note 1 For the meaning of confiscation proceedings, see s 236. Note 2 For when confiscation and criminal proceedings are finalised, see s 18. (4) The unexplained wealth order also authorises the public trustee and guardian or anyone else named in the order (an authorised agent) to sign any instrument necessary or convenient for the disposal of restrained property. (5) An instrument signed by an authorised agent has the same effect as if it were signed by the person who owned the property before it was

98K Public trustee and guardian to repay any amount surplus to satisfying unexplained wealth order If the amounts paid into the trust fund to satisfy an unexplained wealth order are more than is required to fully satisfy the order, the public trustee and guardian must pay the surplus amount to the person against whom the order was made.

98L When unexplained wealth order ends An unexplained wealth order ends if— (a) the order is reversed or set aside on appeal; or (b) the order is fully satisfied.

Division 8.1 Management of restrained property by public trustee and guardian

99 Application of div 8.1 This division applies if the public trustee and guardian takes control of restrained property under an order under this Act. Note 1 A registered interstate restraining order is taken to be a restraining order Note 2 A provision of a law that gives an entity (including a person) a function also gives the entity powers necessary and convenient to exercise the function (see Legislation Act, s 196 and dict, pt 1, def entity).

100 Powers of public trustee and guardian to preserve restrained property etc (1) The public trustee and guardian may do anything necessary or desirable to preserve the value of the restrained property. 1 bring or defend any civil proceeding affecting the property 2 insure the property 3 if the property consists (completely or partly) of securities or investments, realise or otherwise deal with the securities or investments 4 if the property is related to a business— (a) employ, or end the employment of, people in the business; and (b) do anything else that is necessary or convenient for carrying on the business on a sound commercial basis 5 if the property consists, completely or partly, of shares in a corporation, exercise (to the exclusion of the registered proprietor) the rights attaching to the shares as if the public trustee and guardian were the registered holder Note Related powers of the public trustee and guardian include making an application to a relevant court for an order about the restrained property (see s 39) and the registration of title to, or charges over, registrable property (see s 50).

(2) The owner of restrained property commits an offence if— (a) the public trustee and guardian asks the owner for the person’s tax file number within a stated reasonable time; and (b) the owner fails to give the public trustee and guardian the person’s tax file number within that time. (3) An offence against this section is a strict liability offence.

101 Sale, modification or destruction of property by public (1) The public trustee and guardian may sell restrained property if— (a) the property is deteriorating or substantially losing value or the public trustee and guardian considers that the property is likely to deteriorate or substantially lose value; or (b) the public trustee and guardian considers that the cost of maintaining the property would be more than the value of the property if the property were forfeited. (2) The restraining order that applied to restrained property sold under this section applies to the proceeds of the sale of the property. (3) The public trustee and guardian may modify or destroy restrained property if the public trustee and guardian considers it is necessary to do so in the public interest. Examples of destruction of property in the public interest 1 the restrained property cannot be used legally or the only practical use of the property is for an illegal purpose 2 the restrained property is a threat to public health or safety

102 Notice of sale, modification or destruction of restrained property by public trustee and guardian (1) The public trustee and guardian must give written notice of a proposed sale, modification or destruction of restrained property under section 101 (the proposed action) to— (a) the owner of the property (if known); and (b) anyone else the public trustee and guardian believes may have an interest in the property. Note 1 For how documents may be given, see the Legislation Act, pt 19.5. Note 2 For the emergency modification or destruction of restrained property, see s 103. (a) the proposed action and the property to which it applies; and (b) the date when the proposed action is to be taken (the date of effect); and (c) that the proposed action may be taken on or after the date of effect unless a relevant court orders the public trustee and guardian not to take the proposed action. (3) The notice may, but need not, provide an opportunity for the person to make representations why the proposed action should not be taken. (4) The date of effect must not be earlier than 21 days after the day the notice is given to the person. Note For the power to give a reduced period of notice, see s 103. (5) The public trustee and guardian must not take the proposed action before the date of effect. Note For the power not to give notice of the modification or destruction of property, see s 103.

103 Emergency modification or destruction of restrained (1) This section applies if the public trustee and guardian considers that restrained property is a serious threat to public health or safety. (2) Despite section 102, the public trustee and guardian may— (a) give notice to a person under that section with a date of effect less than 21 days after the day the notice is given to the person; or (b) modify or destroy the property without giving notice under that section. (3) If the public trustee and guardian modifies or destroys the property under subsection (2) (b), the public trustee and guardian must, as soon as practicable, give notice of the action taken, and the grounds for the action, to— (a) the owner of the property (if known); and (b) anyone else the public trustee and guardian believes may have an interest in the property.

104 Notice details to be included in public trustee and guardian’s report (1) The public trustee and guardian must include details of a notice given under section 102 or section 103 in the public trustee and guardian’s report under the Annual Reports (Government Agencies) Act 2004 for— (a) the financial year during which the notice was given; or

(b) if the chief police officer has, under this section, declared the publication of details of the notice to be prejudicial—the next financial year after the chief police officer revokes the declaration. Note Financial year has an extended meaning in the Annual Reports (Government Agencies) Act 2004. (2) Before including details of the notice in a report under subsection (1) (a), the public trustee and guardian must consult the chief police officer about whether publication of the details of the notice in the report would be likely to prejudice any police investigation. (3) If, in the chief police officer’s opinion, the publication of the details of the notice in the report would be likely to prejudice a police investigation, the chief police officer must— (a) declare the publication of the details to be prejudicial; and (b) tell the public trustee and guardian, in writing, that the declaration is made. (4) If, in the chief police officer’s opinion after making a declaration, the publication of details of the notice would no longer be likely to prejudice any police investigation, the chief police officer must— (a) revoke the declaration; and (b) tell the public trustee and guardian, in writing, that the declaration is revoked. police investigation includes a contemplated police investigation.

105 Order to stop sale, modification or destruction of restrained property (1) A person may apply to a relevant court for an order stopping the public trustee and guardian from selling, modifying or disposing of restrained property under this division. (2) If the person was not given notice of the proposed action by the public trustee and guardian, the person may make the application only with the leave of the relevant court and if the person satisfies the court that the person has an interest in the property. (3) On an application under this section, the court may make any order about the sale, modification or destruction of the property it considers appropriate. proposed action—see section 102 (1).

Joint ownership of restrained property Division 8.2 Division 8.2 Joint ownership of restrained

106 Effect of death on joint ownership (1) This section applies to property that is jointly owned if any of the owners die while the property (including any interest in the property) is subject to a restraining order. (2) If the property was held by the dead person as a joint tenant, the person’s death does not vest the person’s interest in the property in the surviving joint owner. (3) If the property was held by the dead person as a tenant in common, the dead person’s interest must not be transferred to anyone else because of the person’s death. Examples of prohibited transfers The dead person’s interest must not be transferred to an executor or administrator, or to a beneficiary under the dead person’s will or under intestacy. (4) The restraining order continues to apply to the property as if the person had not died. (5) An automatic forfeiture of any interest of the dead person in the property, or a forfeiture order made in relation to the interest, applies as if the interest were forfeited immediately before the person died. Note 1 A registered interstate automatic forfeiture decision is taken to be an Note 2 A registered interstate forfeiture order is taken to be a forfeiture order (6) If the restraining order stops applying to the property without it being forfeited under this Act, this section is taken not to have applied to the property.

107 Meaning of interested person in pt 9 interested person, in relation to property, means— (a) a person who has an interest in the property; or (b) the DPP; or (c) if a trustee (including the public trustee and guardian) controls the property—the trustee; or (d) if the property has been forfeited—a person who had an interest in the property immediately before it was forfeited.

108 Forfeited property—powers of public trustee and guardian (1) The public trustee and guardian may take any steps that are necessary or desirable to vest forfeited property in the Territory and to bring it under the public trustee and guardian’s control. 1 the giving notice of, or otherwise taking action to protect, the Territory’s equitable interest in forfeited property 2 registering a caveat over forfeited property 3 obtaining registration of an interest in forfeited property on behalf of the Territory (including signing an instrument of transfer)

Preliminary Division 9.1 (2) This section does not limit the powers of the public trustee and guardian under this Act in relation to the forfeited property. the public trustee and guardian may transfer an interest in property on behalf of the Territory Note A registered interstate forfeiture order is taken to be a forfeiture order

Division 9.2 Vesting and disposal of forfeited property Division 9.2 Vesting and disposal of forfeited 109 Vesting of forfeited property—general rule On forfeiture, the forfeited property vests absolutely in the Territory. Note 1 Property includes an interest in property, see Legislation Act, dict, pt 1. Note 2 If a joint owner of restrained property dies, and the property is later

110 Vesting of registrable property on forfeiture (1) This section applies despite section 109, if the forfeited property is, or is an interest in, registrable property. (2) On forfeiture, the property or the interest vests in equity in the Territory, but does not vest at law in the Territory until the applicable registration requirements for the property or the interest have been complied with. All of a person’s property, except a mortgage over the person’s house, is restrained before the person’s conviction for a serious offence. All the restrained property is forfeited 14 days after the person’s conviction. The mortgagee’s interest is not forfeited because it was not restrained. However, all other registrable interests in the house are forfeited and vest in the Territory in equity. On registration of the interests under the Land Titles Act 1925, the interests vest in law in the Territory. Note 1 For the power of a relevant court to order the sale of property owned by more than 1 person, see div 9.4. Note 2 Non-registrable property vests ‘at law’ in the Territory on forfeiture, because it vests ‘absolutely’ under s 109. Registrable property vests ‘at law’ in the Territory when it is registered in the name of the Territory (3) The Territory is entitled to be registered as the owner of the property or the interest.

Vesting and disposal of forfeited property Division 9.2 (4) The registration of the Territory as the owner of the property is taken not to be a contravention of a direction under section 111 (3) in relation to the property. Note If a joint owner of restrained property dies, and the property is later (5) To remove any doubt, if property is divisible into 2 or more interests and not all the interests in the property are forfeited, the other interest or interests are not ended only because of the forfeiture of another interest in the property.

111 Disposal of forfeited property (1) If forfeited property is money, the public trustee and guardian must pay the money into the trust fund. (2) The public trustee and guardian must sell or otherwise dispose of forfeited property (other than money) as soon as practicable after— (a) the end of 14 days after the day the property was forfeited; and (b) the property has vested at law in the Territory; and (c) the public trustee and guardian has control of the property; and (d) if applicable—the end of 14 days after all confiscation proceedings in relation to the property have been finalised. Note 1 A restraining order stops applying to property when the property vests in law in the Territory and the public trustee and guardian takes control of the property (see s 45 (1) (b)). Note 2 The 14-day periods reflect the application periods for return or compensation orders under div 9.5 and buy-back orders under div 9.6. Note 3 For the sale of jointly owned property, see s 116.

Division 9.3 Improperly obtained registered property interests (3) However, the Minister may, after all confiscation proceedings in relation to forfeited property are finalised and before the public trustee and guardian deals with the property under subsection (1) or (2), direct that the property be dealt with in accordance with the direction (including in accordance with a law stated in the direction). (4) The public trustee and guardian must comply with the Minister’s direction. (5) Also, if the DPP tells the public trustee and guardian that forfeited property has evidentiary value in a criminal proceeding, the property must not be sold or otherwise disposed of before the criminal proceeding is finalised, other than— (a) for the purpose of vesting the property at law in the Territory or allowing the public trustee and guardian to take control of the (b) in accordance with a written direction of the DPP. Division 9.3 Improperly obtained registered property interests

112 Application of div 9.3 to registered property interests This division applies to forfeited property if— (a) the property has vested in law in the Territory after a registered property interest in the property was created; or (b) if the property was jointly owned immediately before forfeiture—the property has vested in trustees for sale under section 117 after the interest was created. Note If a joint owner of restrained property dies, and the property is later

Improperly obtained registered property interests Division 9.3

113 Discharge of prior registered property interests given for improper purposes (1) An interested person may apply to a relevant court for an order discharging a registered property interest to which forfeited property is subject. (2) The court must order the discharge of the registered property interest unless satisfied that— (a) the interest was acquired honestly and for sufficient consideration and the person took reasonable care to establish that the interest could be lawfully acquired by the person; and (b) for a registered property interest that was acquired otherwise than in the ordinary course of business— (i) the owner of the registered property interest was not a party to the offence (or a related offence) in relation to which the forfeiture was made; and (ii) the property is not subject to the effective control of the person who committed the offence (or a related offence) in relation to which the forfeiture was made. (3) On application by an interested person, a person responsible for a statutory property register must make the entries in the register that are necessary or desirable to give effect to the court order.

Division 9.4 Sale of jointly owned forfeited Note For general provisions about proceedings for orders under this division (which are confiscation proceedings—see s 236), see pt 14.

114 Application of div 9.4 to jointly owned property (1) This division applies to jointly owned property if the property, or an interest in the property, is forfeited under this Act. Note 1 A registered interstate automatic forfeiture decision is taken to be an Note 2 A registered interstate forfeiture order is taken to be a forfeiture order (2) However, this division does not affect any right of a person to sell an interest in the property that has not been forfeited if the property is not subject to an order under this division.