(a) goods seized as special forfeited goods have not been dealt with under section 206 or 207; and
(b) proceedings of the kind referred to in paragraph (2)(d) or (e) are commenced in respect of the goods; and
(c) on completion of the proceedings, the court is satisfied that the goods are special forfeited goods;
the court must declare the goods to be special forfeited goods and make an order for condemnation of the goods as forfeited to the Crown.
Note: Subsection (9) gives special forfeited goods a wider meaning for the purposes of this section.
(6) A court must not make an order for condemnation of goods under subsection (5) if proceedings for an offence involving the goods have been commenced.
(7) If the finding of a court in proceedings under paragraph (2)(b), (c), (d) or (e) in respect of goods that have not been dealt with under section 206 or 207 may be taken on appeal to another court, the goods are not to be returned under subsection (2), or disposed of under section 208D or 208DA, while that appeal may be made, or, if it is made, until the completion of that appeal.
(8) For the purposes of this section, the return of goods requires their return to the person reasonably believed to be the owner of the goods in a condition as near as practicable to the condition in which they were seized.
(9) In this section:
offence means an offence against any law of the Commonwealth, a State or a Territory.
special forfeited goods includes goods that are forfeited under section 7, 10, 11 or 13 of the Commerce (Trade Descriptions) Act 1905.
(10) In this section, a reference to completion of proceedings includes a reference to completion of any appeal process arising from those proceedings.
205E Magistrate may permit goods seized to be retained
(1) If goods are seized under a seizure warrant or under subsection 203B(2) or (2A), 203C(2), 203CA(3) or 203CB(2) and:
(a) before the end of 120 days after the making of a claim for their return; or
(b) before the end of the period previously specified in a magistrate’s order under this section;
proceedings of the kind referred to in paragraph 205D(2)(b) have not been started, an authorised person may apply to a magistrate for an order that the goods be retained.
(2) If the magistrate is satisfied that:
(a) it is necessary that the retention of the goods continue while evidence of the offence to which the proceedings referred to in paragraph 205D(2)(b) relate is assembled; and
(b) there has been no avoidable delay in assembling that evidence;
the magistrate may order that the goods be retained for a period specified in the order.
(3) Before making the application, the authorised person must:
(a) take reasonable steps to discover who has an interest in the retention of the goods; and
(b) if it is practicable to do so, notify each person who the officer believes to have such an interest of the proposed application.
(4) This section does not apply in relation to goods seized on the belief or suspicion that they are a prohibited psychoactive substance.
205EA Treatment of goods seized if a claim for return is made—suspected prohibited psychoactive substances
(1) This section applies if:
(a) goods are seized under a seizure warrant or under subsection 203B(2) or (2A), 203CA(3) or 203CB(2); and
(b) the goods are seized on belief or suspicion that they are a prohibited psychoactive substance; and
(c) a claim for the return of the goods may be made under section 205B; and
(d) not later than 30 days after the day the seizure notice was served, a claim is made under section 205B for return of the goods.
(2) The authorised person who seized the goods must, subject to any law of the Commonwealth, a State or a Territory permitting their retention, destruction or disposal, return the goods unless:
(a) the goods have been dealt with under section 206; or
(b) not later than 30 days after the day the claim is made, the Comptroller‑General of Customs gives the claimant a written notice stating that the goods will be condemned as forfeited if the claimant does not, within 30 days after receiving the notice, institute proceedings against the Commonwealth:
(i) to recover the goods; or
(ii) for a declaration that the goods are not forfeited.
(3) A notice under paragraph (2)(b):
(a) must be served personally or by post; and
(b) may be served on a person who is outside Australia.
(4) The goods are condemned as forfeited to the Crown if:
(a) the claimant does not institute proceedings of a kind referred to in paragraph (2)(b) within the period of 30 days after receiving the notice under that paragraph (or within that period as extended, or further extended, under section 205EB); or
(b) the claimant institutes such proceedings within that period (or within that period as extended or further extended), and at the end of the proceedings there is not:
(i) an order for the claimant to recover the goods; or
(ii) an order for the Commonwealth to pay the claimant the market value of the goods at the time they were disposed of or destroyed, if they have been disposed of or destroyed before the end of the proceedings; or
(iii) a declaration that the goods are not forfeited.
(5) For the purposes of subsection (4), if the proceedings go to judgment, they end:
(a) at the end of the period for lodging an appeal against the judgment, if no appeal is lodged within that period; or
(b) when the appeal lapses or is finally determined, if an appeal is lodged against the judgment within that period.
(6) For the purposes of this section, the return of goods requires their return to the person reasonably believed to be the owner of the goods in a condition as near as practicable to the condition in which they were seized.
205EB Extending the period for instituting proceedings for recovery of suspected prohibited psychoactive substances
(1) A person who has been given a notice under paragraph 205EA(2)(b) in relation to goods may, before the end of the applicable period under paragraph 205EA(4)(a), apply to a magistrate for an extension, or a further extension, of the period.
(2) If the magistrate is satisfied that:
(a) it is necessary that the retention of the goods continue while information is assembled relating to whether the goods are a prohibited psychoactive substance; and
(b) there has been no avoidable delay in assembling that information;
the magistrate may order that the period be extended, or further extended, for a period specified in the order.
205EC Proceedings for recovery of suspected prohibited psychoactive substances
(1) Proceedings of a kind referred to in paragraph 205EA(2)(b) may be instituted or continued even if the goods to which the proceedings relate are disposed of or destroyed.
(2) In proceedings of a kind referred to in paragraph 205EA(2)(b):
(a) the Commonwealth bears the onus of proving that the goods to which the proceedings relate were imported; and
(b) the person instituting the proceedings bears the onus of proving that the goods:
(i) are not a psychoactive substance; or
(ii) are a substance to which, because of subsection 320.2(2) of the Criminal Code, section 320.2 of the Criminal Code does not apply.
(3) If:
(a) the goods to which proceedings of a kind referred to in paragraph 205EA(2)(b) relates have been disposed of or destroyed before the end of the proceedings; and
(b) the court hearing the proceedings decides that, apart from the disposal or destruction, it would have ordered that the goods be returned to a person;
the court must order the Commonwealth to pay the person an amount equal to the market value of the goods at the time they were disposed of or destroyed.
205F Right of compensation in certain circumstances for goods disposed of or destroyed
(1) Despite the disposal or destruction of goods taken to be condemned as forfeited to the Crown because no claim for their return or recovery was made, a person may apply to a court of competent jurisdiction under this section for compensation.
(2) A right to compensation exists if:
(a) the goods are not special forfeited goods within the meaning of section 205D; and
(b) the goods were not used or otherwise involved in the commission of an offence; and
(c) the person establishes, to the satisfaction of the court:
(i) that he or she is the rightful owner of the goods; and
(ii) that there were circumstances providing a reasonable excuse for the failure to claim the goods before the end of the 30‑day period referred to in paragraph 205C(1)(c) or (2)(f) (as the case may be).
(3) If a right to compensation exists under subsection (2), the court must order the payment by the Commonwealth to the person of an amount equal to:
(a) if the goods have been sold—the proceeds of the sale; and
(b) if the goods have been destroyed—the market value of the goods at the time of their destruction.
205G Effect of forfeiture
When goods are, or are taken to be, condemned as forfeited to the Crown, the title to the goods immediately vests in the Commonwealth to the exclusion of all other interests in the goods, and the title cannot be called into question.
206 Immediate disposal of certain goods
Perishable goods and live animals
(1) If:
(a) goods are seized under a seizure warrant or under subsection 203B(2) or (2A), 203CA(3) or 203CB(2); and
(b) the goods are perishable goods or live animals; and
(c) the Comptroller‑General of Customs is satisfied that the retention of the goods would constitute:
(i) a danger to public health; or
(ii) if the goods are live animals—a danger to the health of other animals or a danger to plants or to agricultural produce;
the Comptroller‑General of Customs may cause the goods to be dealt with in such manner as he or she considers appropriate (including the destruction of the goods).
Dangerous goods
(1A) If:
(a) goods are seized under a seizure warrant or under subsection 203B(2) or (2A), 203CA(3) or 203CB(2); and
(b) the Comptroller‑General of Customs is satisfied that the retention of the goods would constitute a danger to public health or safety;
the Comptroller‑General of Customs may cause the goods to be dealt with in such manner as he or she considers appropriate (including the destruction of the goods).
Unseaworthy vessels
(2) If:
(a) goods are seized under a seizure warrant or under subsection 203B(2) or (2A), 203CA(3) or 203CB(2); and
(b) the goods are a vessel in the possession of an officer of Customs; and
(c) the Comptroller‑General of Customs is satisfied that the vessel is so unseaworthy that its custody or maintenance is impracticable;
the Comptroller‑General of Customs may cause the goods to be dealt with in such manner as he or she considers appropriate (including the destruction of the goods).
Prohibited psychoactive substances, tobacco products and prohibited serious drug alternatives
(2A) If:
(a) goods are seized under a seizure warrant or under subsection 203B(2) or (2A), 203CA(3) or 203CB(2); and
(b) the Comptroller‑General of Customs is satisfied that the goods are a prohibited psychoactive substance, tobacco products or a prohibited serious drug alternative;
the Comptroller‑General of Customs may cause the goods to be dealt with in such manner as he or she considers appropriate (including the destruction of the goods).
Vaping goods
(2B) If:
(a) goods are seized under a seizure warrant or under subsection 203B(2) or (2A), 203CA(3) or 203CB(2); and
(b) the Comptroller‑General of Customs is satisfied that the goods are vaping goods that are prohibited imports;
the Comptroller‑General of Customs may cause the goods to be dealt with in such manner as the Comptroller‑General considers appropriate (including the destruction of the goods).
Engineered stone
(2C) If:
(a) goods are seized under a seizure warrant or under subsection 203B(2) or (2A), 203CA(3) or 203CB(2); and
(b) the Comptroller‑General of Customs is satisfied that the goods are engineered stone that is a prohibited import;
the Comptroller‑General of Customs may cause the goods to be dealt with in such manner as the Comptroller‑General considers appropriate (including the destruction of the goods).
Notice
(3) As soon as practicable, but not later than 7 days after the goods referred to in subsection (1), (1A), (2), (2A), (2B) or (2C) have been dealt with, the Comptroller‑General of Customs must give or publish a notice in accordance with subsection (5).
(4) The notice must be in writing and must be served:
(a) personally or by post on the owner of the goods or, if the owner cannot be identified after reasonable inquiry, on the person in whose possession or under whose control the goods were when they were seized; or
(b) if no person of the kind referred to in paragraph (a) can be identified after reasonable inquiry—by publishing a copy of the notice in a newspaper circulating in the location in which the goods were seized.
(5) The notice must:
(a) identify the goods; and
(b) state that the goods have been seized under a seizure warrant or under subsection 203B(2) or (2A), 203CA(3) or 203CB(2) and give the reason for the seizure; and
(c) state that the goods have been dealt with under subsection (1), (1A), (2), (2A), (2B) or (2C) and specify the manner in which they have been so dealt with and the reason for doing so; and
(d) set out the terms of subsection (6).
Right to recover market value of goods
(6) If goods are dealt with in accordance with subsection (1), (1A), (2), (2A), (2B) or (2C), the owner of the goods may bring an action against the Commonwealth in a court of competent jurisdiction for the recovery of the market value of the goods at the time they were so dealt with.
(7) A right to recover the market value of the goods at the time they were dealt with in accordance with subsection (1), (1A), (2), (2A), (2B) or (2C) exists if:
(a) the goods are not special forfeited goods within the meaning of section 205D; and
(b) the goods were not used or otherwise involved in the commission of an offence; and
(c) the owner of the goods establishes, to the satisfaction of the Court, that the circumstances for them to be so dealt with did not exist.
(8) If a person establishes a right to recover the market value of the goods at the time they were dealt with, the Court must order the payment by the Commonwealth of an amount equal to that value at that time.
207 Immediate disposal of narcotic goods
(1) If:
(a) goods are seized:
(i) under a seizure warrant; or
(ii) under subsection 203B(2) or (2A), 203C(2), 203CA(3) or 203CB(2); or
(iii) under section 67 of the Maritime Powers Act 2013; and
(b) the goods are reasonably believed by the Commissioner of Police or a Deputy Commissioner of Police to be special forfeited goods that are narcotic goods;
the Commissioner or Deputy Commissioner may cause the goods to be dealt with in such manner as he or she considers appropriate (including the destruction of the goods).
(2) If goods are dealt with in accordance with subsection (1), the owner of the goods may bring an action against the Commonwealth in a court of competent jurisdiction for the recovery of the market value of the goods at the time they were so dealt with.
(3) A right to recover the market value of the goods at the time they were dealt with in accordance with subsection (1) exists if:
(a) the goods are not special forfeited goods; and
(b) the goods were not used or otherwise involved in the commission of an offence; and
(c) the owner of the goods establishes, to the satisfaction of the Court, that the circumstances for them to be so dealt with did not exist.
(4) If a person establishes a right to recover the market value of the goods at the time they were dealt with in accordance with subsection (1) or (2), the Court must order the payment by the Commonwealth of an amount equal to that value at that time.
208 Release of goods on security
(1) This section applies to goods:
(a) that have been seized under a seizure warrant; and
(b) that are not special forfeited goods; and
(c) that are not taken to be forfeited to the Crown under section 205C; and
(d) in respect of which proceedings have not yet been brought by the Commonwealth under section 205D.
(2) The owner of the goods may apply to a court of summary jurisdiction for an order that the goods be released to the owner on provision to the Comptroller‑General of Customs of security for an amount determined by the court in accordance with subsection (4).
(3) In determining whether or not to order the release of the goods on provision of a security, the court may have regard to:
(a) the impact that the continued retention of the goods would have on the economic interests of third parties; and
(b) whether the continued retention of the goods would prevent the provision of services by third parties which would place at risk the health, safety or welfare of the community; and
(c) any other like matters that the court considers relevant.
(4) For the purposes of this section, the security to be provided in respect of the goods is security for an amount determined by the court that does not exceed the sum of:
(a) the market value of the goods at the time when the order is made; and
(b) the costs incurred by the Commonwealth for storage of the goods from the time of their seizure until the time of their release under this section;
reduced by the amount of any duty that has been paid on the goods.
(5) If the security is given, the Comptroller‑General of Customs is to release the goods to the applicant.
208C Service by post
For the purposes of the application of section 29 of the Acts Interpretation Act 1901 to the service by post of a seizure notice under section 205 or a notice under subsection 206(3) on a person, such a notice posted as a letter addressed to that person at the last address of that person known to the sender shall be deemed to be properly addressed.