Subdiv 2Reducing the effect of forfeiture orders

Subdivision 2—Reducing the effect of forfeiture orders 57—Relieving certain dependants from hardship (1) A court making a forfeiture order specifying a person's property must make an order directing the Crown to pay a specified amount to a specified dependant, or dependants, of the person if— (a) the forfeiture order is not one to which section 47(1)(a) applies; and (b) the court is satisfied— (i) the forfeiture order would cause hardship to the dependant; and (ii) the specified amount would relieve that hardship; and (iii) if the dependant is aged at least 18 years—the dependant had no knowledge (at the time of the conduct) of the person's conduct that is the subject of the forfeiture order. (2) The specified amount must not exceed the difference between— (a) the amount the court considers likely to be received from disposing of the person's property under the forfeiture order; and (b) the amount the court considers likely to be the costs of administering this Act (referred to in section 209(1)) in connection with the forfeiture order. 58—Making exclusion orders before forfeiture order made (1) A court that is hearing, or is to hear, an application for a forfeiture order, must make an order excluding property from forfeiture (an exclusion order) if— (b) the application for a forfeiture order specifies the applicant's property; and (c) if the forfeiture order would be one to which section 47(1)(a) or (3)(a) applies, the court is satisfied that— (i) the applicant was not involved in the commission of a serious offence to which the application for a forfeiture order relates; and (ii) the property to be specified in the exclusion order is neither proceeds nor an instrument of the offence; and (d) if the forfeiture order would be one to which section 47(1)(b) or (c) or (3)(b) or (c) applies, the court is satisfied that the property to be specified in the exclusion order is neither proceeds nor an instrument of unlawful activity. (2) An exclusion order under subsection (1) must— (b) direct that the property be excluded from the operation of the forfeiture order. (3) An applicant for an exclusion order under subsection (1) must give written notice to the DPP of the application and the grounds on which the order is sought. (5) However, the DPP need not give notice under subsection (4)(b) until it has had a reasonable opportunity to examine the applicant under Part 6 Division 1. (6) An application for an exclusion order under subsection (1) must not be heard until the DPP has had a reasonable opportunity to examine the applicant under Part 6 Division 1. 59—Making exclusion orders after forfeiture (1) A court that made a forfeiture order must make an order excluding property from forfeiture (an exclusion order) if— (b) the forfeiture order specifies the applicant's property; and (c) if the forfeiture order was one to which section 47(1)(a) or (3)(a) applies, the court is satisfied that— (i) the applicant was not involved in the commission of a serious offence to which the forfeiture order relates; and (ii) the property to be specified in the exclusion order is neither proceeds nor an instrument of the offence; and (d) if the forfeiture order was one to which section 47(1)(b) or (c) or (3)(b) or (c) applies, the court is satisfied that the property to be specified in the exclusion order is neither proceeds nor an instrument of unlawful activity. (2) An exclusion order under subsection (1) must— (b) direct that the property be excluded from the operation of the forfeiture order; and (c) if the property has vested (in law or equity) in the Crown under this Division and is yet to be disposed of—direct the Crown to transfer the property to the applicant; and (d) if the property has vested (in law or equity) in the Crown under this Division and has been disposed of—direct the Crown to pay the applicant an amount equal to the value specified under paragraph (a). (3) An applicant for an exclusion order under subsection (1) must give written notice to the DPP of the application and the grounds on which the order is sought. (5) However, the DPP need not give notice under subsection (4)(b) until it has had a reasonable opportunity to examine the applicant under Part 6 Division 1. (6) An application for an exclusion order under subsection (1) must not be heard until the DPP has had a reasonable opportunity to examine the applicant under Part 6 Division 1. 59A—Exclusion orders based on cooperation with law enforcement agency (1) If a person becomes a prescribed drug offender, the convicting court may make an order excluding property from forfeiture under Subdivision 1A (an exclusion order) if— (b) the forfeiture applies to the applicant's property; and (c) the court is satisfied that the property to be specified in the exclusion order is neither proceeds nor an instrument of unlawful activity; and (d) the court is satisfied that it would be appropriate to reduce the effect of forfeiture because— (i) the person has cooperated with a law enforcement agency by providing a witness statement and an undertaking to provide oral testimony; and (ii) that cooperation was not taken into account by the court in sentencing the person; and (iii) the cooperation relates directly to a serious and organised crime offence that has been committed or may be committed in the future. (1a) In determining whether to exclude property under this section, or the nature, extent and value of the property to be excluded, the court must have regard to such of the following as may be relevant: (a) the nature and extent of the applicant's cooperation; (b) the timeliness of the cooperation; (c) the truthfulness, completeness and reliability of any information or evidence provided by the applicant; (d) the evaluation (if any) by the authorities of the significance and usefulness of the applicant's cooperation; (e) any benefit that the applicant has gained or is likely to gain by reason of the cooperation; (f) the degree to which the safety of the applicant (or some other person) has been put at risk of violent retribution as a result of the applicant's cooperation; (g) the likelihood that the applicant will commit further offences, and may have regard to any other factor or principle the court thinks relevant. (2) Subject to subsection (2a), an exclusion order under subsection (1) must— (b) direct that the property be excluded from the operation of Subdivision 1A; and (c) if the property has vested (in law or equity) in the Crown under this Division and is yet to be disposed of—direct the Crown to transfer the property to the applicant; and (d) if the property has vested (in law or equity) in the Crown under this Division and has been disposed of—direct the Crown to pay the applicant an amount equal to the value specified under paragraph (a). (2a) If the court is of the view that an exclusion order made in accordance with subsection (2) would alert other persons to the applicant's cooperation and as a result put the applicant at risk of violent retribution, it may make an exclusion order— (a) specifying the nature, extent and value (at the time of making the order) of the property concerned; and (b) direct the Crown to pay the applicant an amount equal to the value specified in paragraph (a). (3) An applicant for an exclusion order under subsection (1) must give written notice to the DPP of the application and the grounds on which the order is sought. 59B—Exclusion orders based on financial interests of Crown etc (1) If a person becomes a prescribed drug offender, a court may make an order excluding property from forfeiture under Subdivision 1A (an exclusion order) if— (a) the DPP applies to the court for the exclusion order; and (i) it would be contrary to the financial interests of the Crown for the property to be forfeited to the Crown; or (ii) it is otherwise not in the public interest for the property to be forfeited to the Crown. (2) An exclusion order under subsection (1)— (a) may identify the property concerned by— (i) specifying the nature and extent of the property that is to be excluded; or (ii) specifying that all property to which the deemed forfeiture order would apply is to be excluded; or (iii) specifying that all property to which the deemed forfeiture order would apply, other than specified property, is to be excluded; and (b) must direct that the property be excluded from the operation of the deemed forfeiture order under Subdivision 1A; and (c) may include any other directions that are necessary or convenient for giving effect to the order. (3) A court may make an exclusion order under subsection (1) on the basis of the DPP's application and in the absence of, and without hearing from, any parties to the application. (4) If a court makes an exclusion order in relation to property under subsection (1), the property will (subject to any order of the court to the contrary) be taken to have never been forfeited under Subdivision 1A. 60—Applying for exclusion orders (1) A person may apply for an exclusion order if a forfeiture order that could specify the person's property has been applied for, but is yet to be made. (2) A person cannot, except with the permission of the court, apply for an exclusion order after a forfeiture order specifying the person's property has been made if— (a) the person— (i) appeared at the hearing of that application; or (ii) was given notice of the application for the forfeiture order, but did not appear at the hearing of that application; or (b) 6 months have elapsed since the forfeiture order was made. (3) The court may only give permission to apply under subsection (2) if satisfied that— (a) if subsection (2)(a)(i) applies—the person now has evidence relevant to the person's application that was not available to the person at the time of the hearing; or (b) if subsection (2)(a)(ii) applies—the person had a good reason for not appearing; or (c) if subsection (2)(b) applies—the person's failure to apply was not due to any neglect by the person; or (d) in any case—there are special grounds for giving the permission. 61—Making compensation orders (1) A court that made a forfeiture order must make an order (a compensation order) if— (a) a person has applied for the compensation order; and (b) the forfeiture order specifies the applicant's property as proceeds of a serious offence to which the forfeiture order relates; and (c) the court is satisfied that, when the property first became proceeds of the serious offence, a proportion of the value of the property was not acquired using the proceeds of any unlawful activity. (2) A compensation order must— (a) specify the proportion of the value of the property not acquired using the proceeds of any offence referred to in subsection (1)(c); and (b) direct the Crown to— (i) if the property has not been disposed of—dispose of the property; and (ii) pay the applicant an amount equal to that proportion of the difference between the amount received from disposing of the property and the total of any costs of administering this Act (of a kind referred to in section 209(1)) in connection with the forfeiture order. (3) An applicant for a compensation order must give written notice to the DPP of the application and the grounds on which the order is sought. 62—Applying for compensation orders (1) Subject to this section, a person whose property is specified in a forfeiture order may apply for a compensation order. (2) If a person was given notice of an application for a forfeiture order, the person cannot apply for a compensation order relating to that forfeiture order unless— (a) the person applies for the compensation order within 6 months after the forfeiture order was made; and (b) the court gives permission. (3) If a person was not given notice of an application for a forfeiture order, the person cannot apply for a compensation order relating to a forfeiture order unless— (a) the person applies for the compensation order within 6 months after the forfeiture order was made; or (b) the court gives permission. 62A—No exclusion or compensation where forfeiture taken into account in sentencing Subject to section 59A but despite any other provision of this Subdivision, if a court has, in determining sentence in respect of a person's conviction of a serious offence, taken into account any forfeiture of property under this Act that relates to the offence or that might result from conviction for the offence, the person cannot apply for an exclusion order or a compensation order under this Subdivision in respect of that property. 63—Certain forfeiture orders unaffected by acquittal or quashing of conviction A forfeiture order made under section 47(1)(b) or (c) or (3)(b) or (c) against a person in relation to a serious offence is not affected if— (a) having been charged with the offence, the person is acquitted; or (b) the person is convicted of the offence and the conviction is subsequently quashed. 64—Discharge of conviction based forfeiture order on quashing of conviction (1) A forfeiture order made under section 47(1)(a) or (3)(a) in relation to a person's conviction of a serious offence is discharged if— (a) the person's conviction of the offence is subsequently quashed (whether or not the order relates to the person's conviction of other offences that have not been quashed); and (b) the DPP does not, within 14 days after the conviction is quashed, apply to the court that made the order for the order to be confirmed. (2) However, unless a court decides otherwise on an application under subsection (1), the quashing of the conviction does not affect the forfeiture order— (a) for 14 days after the conviction is quashed; or (b) if the DPP makes an application under subsection (1). 65—Notice of application for confirmation of forfeiture order (1) The DPP must give written notice of an application for confirmation of the forfeiture order to— (a) the person whose conviction was quashed; and (b) any person— (i) who claims, or prior to the forfeiture claimed, an interest in property covered by the forfeiture order; and (ii) whom the DPP reasonably believes may have had an interest in property covered by the forfeiture order before the forfeiture. (2) The court may, at any time before finally determining the application— 66—Procedure on application for confirmation of forfeiture order (1) A person who claims an interest in property covered by the forfeiture order may appear and adduce evidence at the hearing of the application for confirmation of the order. (2) A court may, in determining the application, have regard to— (ii) if the person was taken to be convicted of the offence because of section 5(1)(c)—the other offence referred to in that paragraph, 67—Court may confirm forfeiture order A court may confirm a forfeiture order made under section 47(1)(a) or (3)(a) if satisfied that the court could, at the time it made that order, have instead made a forfeiture order under some other provision of section 47 (if the DPP had applied for an order under that other provision). 68—Effect of court's decision on confirmation of forfeiture order (1) If a court confirms the forfeiture order under section 67, the order is taken not to be affected by the quashing of the person's conviction of the serious offence. (2) If the court decides not to confirm the forfeiture order, the order is discharged. 69—Administrator must not deal with forfeited property before the court decides on confirmation of forfeiture order The Administrator must not, during the period starting on the day after the person's conviction of the serious offence was quashed and ending when the court confirms, or decides not to confirm, the forfeiture order, do any of the things required under section 93 in relation to property covered by the order, or amounts received from the disposal of the property. 70—Giving notice if a forfeiture order is discharged on appeal or by quashing of a conviction (a) a forfeiture order that covered particular property is discharged by a court hearing an appeal against the making of the order; or (b) a forfeiture order that covered particular property is discharged under section 64 or section 68(2), then the DPP— (c) must, as soon as practicable, give written notice of the discharge to any person the DPP reasonably believes may have had an interest in the property immediately before the order was made; and (d) must, if required by a court, give or publish notice of the discharge to a specified person or class of persons. (2) The court may specify the time and manner in which a notice under subsection (1)(d) is to be given or published. (3) A notice given under this section must include a statement to the effect that a person claiming to have had an interest in that property may apply under section 71 for the transfer of the interest, or its value, to the person. 71—Returning property etc following the discharge of a forfeiture order (a) a forfeiture order has been discharged in relation to property specified in the forfeiture order— (i) by a court hearing an appeal against the making of the order; or (ii) under section 64 or 68; and (b) a person who had an interest in the property immediately before the order was made applies in writing to the Minister for the transfer of the interest to the person, the Minister must— (c) if the property is vested in the Crown—cause an interest in the property equivalent to the interest held by the person immediately before the order was made to be transferred to the person; or (d) if the property is no longer vested in the Crown—cause an amount equal to the value of the interest held by the person immediately before the order was made in the property to be paid to the person. (2) The Minister may do or authorise the doing of anything necessary or convenient to effect a transfer, including— (b) applying for registration of an interest in the property on any appropriate register.