Div 5Duration of restraining orders

Division 5—Duration of restraining orders 42—When a restraining order comes into force A restraining order is in force from the time it is made. 43—Application to revoke a restraining order (1) A person who was not notified of the application for a restraining order may apply to the court that made the order to revoke the order— (a) within 28 days after the person is notified that the order was made; or (b) within such longer period (not exceeding 3 months after the person is notified that the order was made) as the court allows. (2) The applicant must give written notice to the DPP and, if a person other than the DPP is appointed to act as the Administrator under this Act, the Administrator of the application and the grounds on which the revocation is sought. (3) The court may revoke the restraining order if satisfied there are no grounds on which to make the restraining order at the time of considering an application under subsection (1). (4) However, the restraining order remains in force until the court revokes the order. (5) The DPP may adduce additional material to the court relating to the application to revoke the restraining order. 44—Giving security etc to revoke a restraining order A court may revoke a restraining order that covers property if— (a) in the case of a restraining order that covers the property of the suspect— (i) the suspect applies to the court to revoke the order; and (ii) the suspect gives written notice of the application to the DPP; and (iii) the suspect gives security that is satisfactory to the court to meet any liability that may be imposed on the suspect under this Act; or (b) in the case of a restraining order that covers the property of a person who is not the suspect— (i) the person applies to the court to revoke the order; and (ii) the person gives written notice of the application to the DPP; and (iii) the person gives an undertaking concerning the person's property that is satisfactory to the court. 45—Notice of revocation of a restraining order If a restraining order is revoked under section 43 or 44, the DPP must give written notice of the revocation to— (a) the owner of any property covered by the restraining order (if the owner is known); and (b) any other person the DPP reasonably believes may have an interest in the property, however, the DPP need not give notice to the applicant for the order. 46—Cessation of restraining orders (1) A restraining order that relates to one or more serious offences ceases to be in force 28 days after— (a) all charges that relate to the restraining order are withdrawn; or (b) the suspect is acquitted of all serious offences with which the suspect was charged; or (c) the convictions for the serious offences of which the suspect was convicted are quashed, unless— (d) there is a confiscation order that relates to the serious offences; or (e) there is an application for a confiscation order that relates to the serious offences before the court; or (f) there is an application under— (i) section 64; or (ii) section 83; or (iii) section 125, for confirmation of a forfeiture, or a confiscation order, that relates to the serious offences; or (g) the suspect is charged with a related offence. (2) A restraining order relating to property ceases to be in force if, not more than 28 days after the order was made— (a) the suspect has not been convicted of, or charged with, the serious offence, or at least one serious offence, to which the restraining order relates; and (b) there is no confiscation order or application for a confiscation order that relates to the property. (3) A restraining order ceases to be in force in respect of property covered by the restraining order if— (a) one of the following occurs: (i) the court refuses an application for a forfeiture order that would have covered the property and— (A) the time for an appeal against the refusal has expired without an appeal being lodged; or (B) an appeal against the refusal has lapsed; or (C) an appeal against the refusal has been dismissed and finally disposed of; (ii) the court excludes the property from a forfeiture order; (iii) a forfeiture order that covers the property is discharged or ceases to have effect; (iv) the court excludes the property under section 76 from forfeiture under Part 4 Division 2; and (b) no application is yet to be determined for— (i) another confiscation order relating to a serious offence to which the restraining order relates; or (ii) another confiscation order relating to a related offence; and (c) no other confiscation order relating to an offence referred to in paragraph (b) is in force. (4) A restraining order ceases to be in force to the extent that property that it covers vests absolutely in the Crown under this or any other Act. (5) A restraining order that relates to one or more serious offences ceases to be in force in respect of property covered by the restraining order if— (a) a pecuniary penalty order or a literary proceeds order relates to the offence or offences; and (b) one or more of the following occurs: (i) the pecuniary penalty order or the literary proceeds order is satisfied; (ii) the property is sold or disposed of to satisfy the pecuniary penalty order or literary proceeds order; (iii) the pecuniary penalty order or the literary proceeds order is discharged or ceases to have effect. (6) Despite subsection (1), if— (a) a restraining order covers property of a person who is not a suspect; and (b) the property is an instrument of, but is not proceeds of, a serious offence to which the order relates; and (c) the property is not subject to the effective control of another person who is a suspect in relation to the order, the restraining order ceases to be in force in respect of that property if the suspect has not been charged with the serious offence or a related offence within 28 days after the restraining order is made. Part 4—Forfeiture Division 1—Forfeiture orders Subdivision 1—Forfeiture orders 47—Forfeiture orders (1) A court must, on application by the DPP, make an order (a forfeiture order) that property specified in the order is forfeited to the Crown if— (a) a person has been convicted of one or more serious offences and the court is satisfied that the property to be specified in the order is proceeds of one or more of those offences; or (b) the property to be specified in the order is covered by a restraining order made under section 24(1)(b) that has been in force for at least 6 months and the court is satisfied that the property is proceeds of one or more serious offences committed by the person whose conduct (or suspected conduct) formed the basis of the restraining order; or (c) the property to be specified in the order is covered by a restraining order made under section 24(1)(c) that has been in force for at least 6 months and the court is satisfied that— (i) the application for the order alleges that the property is proceeds of one or more serious offences; and (ii) no application has been made under Part 3 Division 3 for the property to be excluded from the restraining order, or that any such application has been withdrawn; and (iii) the DPP has taken reasonable steps to identify and notify persons with an interest in the property. (2) For the purposes of making an order under subsection (1)(b) or (c)— (a) a finding of the court under either of those paragraphs need not be based on a finding as to the commission of a particular serious offence; and (b) the fact that a person has been acquitted of a serious offence with which the person has been charged, or the raising of a doubt as to whether a person engaged in conduct constituting a serious offence, does not affect the court's power to make the order under either of those paragraphs in relation to the offence; and (c) in relation to an order under subsection (1)(c)—a finding of the court under that paragraph need not be based on a finding that a particular person committed any offence. (3) A court may, on application by the DPP, make an order (a forfeiture order) that property specified in the order is forfeited to the Crown, if— (a) a person has been convicted of one or more serious offences the court is satisfied that the property is an instrument of one or more of the offences or is subject to an instrument substitution declaration under section 48; or (b) the property to be specified in the order is covered by a restraining order made under section 24(1)(b) that has been in force for at least 6 months and the court is satisfied that the property is an instrument of one or more serious offences committed by the person whose conduct (or suspected conduct) formed the basis of the restraining order; or (c) the property to be specified in the order is covered by a restraining order made under section 24(1)(c) that has been in force for at least 6 months and the court is satisfied that— (i) the application for the order alleges that the property is an instrument of one or more serious offences; and (ii) no application has been made under Part 3 Division 3 for the property to be excluded from the restraining order, or that any such application has been withdrawn; and (iii) the DPP has taken reasonable steps to identify and notify persons with an interest in the property. (4) In considering whether it is appropriate to make a forfeiture order under subsection (3) in respect of particular property, the court may have regard to— (a) any hardship that may reasonably be expected to be caused to any person (other than the suspect) by the operation of the order; and (b) the use that is ordinarily made, or was intended to be made, of the property; and (c) the gravity of the offence or offences concerned; and (d) any other matter the court thinks fit. (5) If evidence is given, at the hearing of an application for a forfeiture order under subsection (3) that relates to a person's conviction for a serious offence, that property was in the possession of a person at the time at which, or immediately after, the person committed a serious offence to which the application relates— (a) if no evidence is given that tends to show that the property was not used in, or in connection with, the commission of the offence—the court must presume that the property was used in, or in connection with, the commission of the offence; or (b) in any other case—the court must not make a forfeiture order against the property unless it is satisfied that the property was used or intended to be used in, or in connection with, the commission of the offence. (6) An application for a forfeiture order under this section that relates to a person's conviction for a serious offence must be made before the end of the period of 6 months after the conviction day. (7) A court must not, if a person is taken under section 5(1)(d) to have been convicted of a serious offence, make a forfeiture order relating to the person's conviction unless— (a) the court is satisfied, on the balance of probabilities, that the person has absconded; and (i) the person has been committed for trial for the offence; or (ii) the court is satisfied, having regard to all the evidence before the court, that a reasonable jury, properly instructed, or the Magistrates Court (as the case requires) could lawfully find the person guilty of the offence. 48—Instrument substitution declarations A court determining an application for a forfeiture order under section 47(3) relating to a person's conviction of a serious offence may, on the application of the DPP, declare property to be subject to an instrument substitution declaration if satisfied that— (a) the convicted person had, at the time of the offence, an interest in the property; and (b) the property is of the same nature or description as property that was an instrument of the offence (whether or not the property is of the same value); and (c) the property that was an instrument of the offence is not available for forfeiture or is not able to be made the subject of an order for forfeiture. 49—Additional application for a forfeiture order (1) The DPP cannot, unless the court gives permission, apply for a forfeiture order under section 47 in relation to a serious offence if— (a) an application has previously been made under that section for the forfeiture of the property in relation to the offence; and (b) the application has been finally determined on the merits. (2) The court must not give permission unless it is satisfied that— (a) the property to which the new application relates was identified only after the first application was determined; or (b) necessary evidence became available only after the first application was determined; or (c) it is in the interests of justice to grant the permission. (3) To avoid doubt, the DPP may apply for a forfeiture order against property in relation to a serious offence even though an application has previously been made for a pecuniary penalty order or a literary proceeds order in relation to the offence. 50—Notice of application (1) The DPP must give written notice of an application for a forfeiture order— (a) if the order is sought relating to a person's conviction of a serious offence—to the person; and (b) to any other person— (i) who claims an interest in; or (ii) who the DPP reasonably believes may have an interest in, the property covered by the application. (2) However, a court to which an application for a forfeiture order is made may, on the application of the DPP, dispense with the requirement to give notice to a person under subsection (1) if the court is satisfied that the person has absconded in connection with an offence. (3) The court may, at any time before finally determining an application for a forfeiture order— 51—Procedure on application (1) A person who claims an interest in property covered by an application for a forfeiture order may appear and adduce evidence at the hearing of the application. (2) If the application relates to a person's conviction of a serious offence, a court may, in determining the application, have regard to— (a) the transcript of any proceedings against the person for— (i) that offence; or (ii) if the person is taken to be convicted of the offence because of section 5(1)(c)—the other offence referred to in that paragraph; and (b) any evidence given in the proceedings. (3) The court may make a forfeiture order if a person entitled to be given notice of the relevant application fails to appear at the hearing of the application. 52—Amending an application (1) The court hearing an application for a forfeiture order may, on the application or with the consent of the DPP, amend the application. (2) However, the court must not amend the application to include additional property in the application unless— (a) the court is satisfied that— (i) the property was not reasonably capable of identification when the application was originally made; or (ii) necessary evidence became available only after the application was originally made; or (b) the forfeiture order applied for is an order to which section 47(1)(b) or (c) or (3)(b) or (c) applies and the court is satisfied that— (i) including the additional property in the application for the order might have prejudiced the investigation of, or the prosecution of a person for, an offence; or (ii) it is for any other reason appropriate to grant the application to amend. (3) The DPP must, on applying for an amendment to include additional property in the application, give written notice of the application to amend to any person whom the DPP reasonably believes may have an interest in the additional property. (4) However, the court may, on the application of the DPP, dispense with the requirement to give notice to a person under subsection (3) if the court is satisfied that the person has absconded in connection with an offence. (5) If the forfeiture order applied for is an order to which section 47(1)(a) or (3)(a) applies, any person who claims an interest in that additional property may appear and adduce evidence at the hearing of the application to amend. 53—Forfeiture orders can extend to other interests in property (1) A court may, in specifying an interest in property in a forfeiture order, specify any other interests in the property (regardless of whose they are) if— (a) the amount received from disposing of the combined interests would be likely to be greater than the amount received from disposing of each of the interests separately; or (b) disposing of the interests separately would be impracticable or significantly more difficult than disposing of the combined interests. (2) If a court specifies other interests under subsection (1), the court may make such ancillary orders as it thinks fit for the protection of a person having one or more of those other interests. (3) Without limiting the generality of subsection (2), an ancillary order may include— (a) an order directing the Crown to pay the person a specified amount as the value of the person's interest in the property; or (b) an order directing that specified other interests in the property be transferred to the person. (4) In deciding whether to make an ancillary order, the court must have regard to— (a) the nature, extent and value of the person's interest in the property concerned; and (b) if the court is aware that any other person claims an interest in the property—the nature, extent and value of the interest; and (c) any other matter that the court considers relevant. 54—Forfeiture orders must specify the value of forfeited property A court must specify the amount it considers to be the value, at the time the order is made, of the property (other than money) specified in the forfeiture order. 55—Declaration by court in relation to buying back interests in forfeited property A court that makes a forfeiture order may, if satisfied that— (a) it would not be contrary to the public interest for a person's interest in the property to be transferred to the person; and (b) there is no other reason why the person's interest should not be transferred to the person, (c) declare the nature, extent and value (at the time when the order is made) of the person's interest; and (d) declare that the interest may be excluded under section 72 from the operation of the forfeiture order. 56—Court may make supporting directions (1) A court that makes a forfeiture order may give any directions that are necessary or convenient for giving effect to the order. (2) Without limiting the generality of subsection (1), a direction may, for a forfeiture order specifying registrable property, include a direction to an officer of the court to do anything necessary and reasonable to obtain possession of any document necessary for the transfer of the property.