(1) Where the Minister, the Commissioner of Police, the Comptroller‑General of Customs or the Director of Public Prosecutions has instituted a proceeding under section 243B for an order that a person (in this section referred to as the defendant) pay a pecuniary penalty in relation to a particular prescribed narcotics dealing, or in relation to prescribed narcotics dealings during a particular period, the Minister, the Commissioner of Police, the Comptroller‑General of Customs or the Director of Public Prosecutions may make application to the Court, ex parte, for an order under paragraph (2)(c) against one or more of the following:
(a) specified property of the defendant;
(b) all the property of the defendant (including property acquired after the making of the order);
(d) all the property of the defendant (including property acquired after the making of the order) other than specified property;
(e) specified property of a person other than the defendant.
(1A) The application under subsection (1) may be made:
(a) where the Court makes the order under section 243B—at any time before the liability of the defendant in respect of the pecuniary penalty has been discharged; or
(b) in any other case—at any time before the proceeding under section 243B is finally disposed of.
(2) Where:
(a) an application under subsection (1) is supported by:
(i) an affidavit of a police officer or an officer of Customs stating that he or she believes that:
(A) the defendant has engaged in the prescribed narcotics dealing to which the proceeding under section 243B relates, or in prescribed narcotics dealings during the period to which that proceeding relates; and
(B) benefits were derived by the defendant by reason of the defendant’s having engaged in that prescribed narcotics dealing, or in prescribed narcotics dealings during that period, as the case may be;
and setting out the grounds on which he or she holds those beliefs; and
(ii) if the application seeks an order against specified property of the defendant—an affidavit of a police officer or an officer of Customs stating that he or she believes that the property is the property of the defendant and setting out the grounds on which he or she holds that belief; and
(b) the Court considers that, having regard to the matters contained in that affidavit or those affidavits, there are reasonable grounds for holding those beliefs;
the Court:
(c) shall, subject to subsection (2A), make an order:
(i) directing that the property, or such part of the property as is specified in the order, is not to be disposed of, or otherwise dealt with, by any person, except in such manner and in such circumstances (if any) as are specified in the order; and
(ii) if the Court is satisfied that the circumstances so require—direct the Official Trustee to take custody and control of the property, or such part of the property as is specified in the order; and
(d) may, subject to subsection (3), include in the order such provision (if any) in relation to the operation of the order as the Court thinks fit.
(2A) Where an application under subsection (1) seeks an order under paragraph (2)(c) against specified property of a person other than the defendant, the Court shall not make the order unless:
(a) the application is supported by an affidavit of a police officer or an officer of Customs stating that the officer believes that the property is subject to the effective control of the defendant; and
(b) the Court considers that, having regard to the matters contained in that affidavit, there are reasonable grounds for holding that belief.
(3) Paragraph (2)(d) does not authorize the Court to include in the order a provision postponing the operation of the order.
(4) Without limiting the power of the Court under paragraph (2)(d), the order against property:
(a) may set out conditions subject to which the order is to apply to all of that property, or to a specified part of that property;
(b) may make provision for a review of the operation of the order by the Court; and
(c) may make provision for meeting the reasonable living and business expenses of the defendant out of that property, or out of a specified part of that property.
(4A) The Court shall not make provision of the kind referred to in paragraph (4)(c) unless it is satisfied that the defendant cannot meet the expenses concerned out of property that is not subject to the order.
(5) The Court may refuse to make the order if the Commonwealth refuses or fails to give to the Court such undertakings as the Court deems appropriate with respect to the payment of damages or costs, or both, in relation to the making and operation of the order.
(6) For the purposes of an application under subsection (1), the Minister, the Commissioner of Police, the Comptroller‑General of Customs or the Director of Public Prosecutions may, on behalf of the Commonwealth, give to the Court such undertakings with respect to the payment of damages or costs, or both, as are required by the Court.
(7) Notwithstanding anything contained in the Bankruptcy Act 1966, moneys that have come into the possession, or under the control, of the Official Trustee in accordance with an order made under subsection (2) shall not be paid into the Common Investment Fund established in pursuance of section 20B of that Act.
(8) Where the Official Trustee is given a direction under subparagraph (2)(c)(ii) in relation to property, the Official Trustee may do anything that is reasonably necessary for the purpose of preserving the property including, without limiting the generality of this:
(a) becoming a party to any civil proceedings affecting the property;
(b) ensuring that the property is insured;
(c) if the property consists, wholly or partly, of securities or investments—realising or otherwise dealing with the securities or investments; and
(d) if the property consists, wholly or partly, of a business:
(i) employing, or terminating the employment of, persons in the business; and
(ii) doing any other thing that is necessary or convenient for carrying on the business on a sound commercial basis.
(9) Where the Official Trustee is given a direction under subparagraph (2)(c)(ii) in relation to shares in a company, the Official Trustee is entitled:
(a) to exercise the rights attaching to the shares as if it were the registered holder of the shares; and
(b) to do so to the exclusion of the registered holder.
(10) Neither paragraph (8)(c) nor subsection (9) limits the generality of the other.
(11) In proceedings dealing with an application for an order under paragraph (2)(c), a witness shall not be required to answer a question or to produce a document if the Court is satisfied that the answering of the question or the production of the document may prejudice the investigation of, or the prosecution of a person for, an offence.
243F Court may make further orders
(1AA) In this section:
defendant has the same meaning as in section 243E.
(1) Where the Court makes, or has made, a restraining order (in this section called the original order) against property of a person (in this section called the owner), the Court may, at the time it makes the original order or at any subsequent time, make such orders in relation to that property as the Court considers just and, without limiting the power so conferred on the Court, the Court may, at any time or from time to time, make an order:
(a) varying the original order in respect of the property to which it relates or any provision included in the original order by virtue of paragraph 243E(2)(d);
(b) regulating the manner in which the Official Trustee may exercise its powers or perform its duties under the original order;
(c) determining any question relating to the property to which the original order relates, including any question relating to the liabilities of the owner, and the exercise of the powers, or the performance of the duties, of the Official Trustee, with respect to the property to which the original order relates;
(d) directing:
(i) the owner; or
(ii) if the owner is not the defendant—the defendant; or
(iii) if the owner or the defendant is a body corporate—a director of the body corporate specified by the Court;
to give to the Minister, the Commissioner of Police, the Comptroller‑General of Customs, the Director of Public Prosecutions or the Official Trustee, within a period specified in the order, a statement verified by the oath of the person making the statement, setting out such particulars of the property, or dealings with the property, of the owner or defendant as the Court thinks proper;
(e) for the examination on oath before the Court or Registrar of the Court of any person, including:
(i) the owner; or
(ii) the defendant;
about the affairs (including the nature and location of any property) of:
(iii) anyone else who is either the owner or the defendant, or both; and
(iv) if the person to be examined is either the owner or defendant, or both—that person;
(ea) directing the owner or another person to do any act or thing necessary or convenient to be done to enable the Official Trustee to take custody and control of the property in accordance with the original order; or
(f) with respect to the carrying out of any undertaking with respect to the payment of damages or costs given by the Commonwealth in connection with the making of the original order.
(2) An application for an order under subsection (1) may be made:
(a) by the Official Trustee;
(b) by the Minister, the Commissioner of Police, the Comptroller‑General of Customs or the Director of Public Prosecutions;
(c) by the owner; or
(d) with the leave of the Court, by any other person.
(2A) Where:
(a) the Court made the original order against the property in reliance on the engaging by a person (in this subsection called the defendant) in a prescribed narcotics dealing or prescribed narcotics dealings during a particular period; and
(b) another person having an interest in the property applies to the Court for a variation of the order to exclude the interest from the order;
the Court shall grant the application if satisfied that the interest is not subject to the effective control of the defendant.
(3) Where:
(a) a person is examined before the Court, or the Registrar of the Court, under an order made under subsection (1); or
(b) an order made under subsection (1) directs a person to furnish a statement to the Minister, the Commissioner of Police, the Comptroller‑General of Customs, the Director of Public Prosecutions or the Official Trustee;
the person is not excused from:
(c) answering a question when required to do so by the Court, or by the Registrar of the Court; or
(d) furnishing the statement, or setting out particulars in the statement;
as the case may be, on the ground that the answer to the question, or the statement or particulars, might tend to incriminate the person or make the person liable to a forfeiture or penalty.
(3A) Where a person:
(a) is examined before the Court, or the Registrar of the Court; or
(b) furnishes a statement to the Minister, the Commissioner of Police, the Comptroller‑General of Customs, the Director of Public Prosecutions or the Official Trustee;
under an order made under subsection (1), then:
(c) a statement or disclosure made by the person in answer to a question put in the course of the examination; or
(d) the statement so furnished;
as the case may be, and any information, document or thing obtained as a direct or indirect consequence of the statement or disclosure referred to in paragraph (c), or of the statement referred to in paragraph (d), is not admissible against the person in any civil or criminal proceeding except:
(e) a proceeding for giving false testimony in the course of the examination, or in respect of the falsity of the statement, as the case may be; or
(f) a proceeding for the recovery of a pecuniary penalty, for the purpose only of facilitating the assessment of the amount of the pecuniary penalty.
(4) In this section, unless the contrary intention appears:
(a) references to the original order shall be read as including references to the original order as varied under this section; and
(b) references to the Registrar of the Court shall be read as including references to a Deputy Registrar of the Court, a District Registrar of the Court and a Deputy District Registrar of the Court.
(5) In proceedings dealing with an application for an order under subsection (1), a witness is not required to answer a question or to produce a document if the Court is satisfied that the answering of the question or the production of the document may prejudice the investigation of, or the prosecution of a person for, an offence.
243G Official Trustee to discharge pecuniary penalty
(1) Where:
(a) the Court makes an order under section 243B that a person pay a pecuniary penalty in relation to a particular prescribed narcotics dealing or in relation to prescribed narcotics dealings during a particular period; and
(b) at the time when the order is made, property is subject to a restraining order made, in reliance on the prescribed narcotics dealing or prescribed narcotics dealings, against:
(i) property of the person; or
(ii) property of another person in relation to which an order under subsection 243CA(2) is made;
the Court may include in the order under section 243B a direction to the Official Trustee to pay the Commonwealth, in accordance with this section, an amount equal to the penalty amount out of that property.
(2) Where:
(a) the Court makes an order under section 243B for a person to pay a pecuniary penalty in relation to a prescribed narcotics dealing or prescribed narcotics dealings during a particular period; and
(b) a restraining order is subsequently made against:
(i) property of the person; or
(ii) property of another person in relation to which an order under subsection 243CA(2) is made;
in reliance on the prescribed narcotics dealing or prescribed narcotics dealings;
the Court may include in the restraining order a direction to the Official Trustee to pay the Commonwealth, in accordance with this section, an amount equal to the penalty amount out of that property.
(2A) If:
(a) the Court has made an order under section 243B that a person pay a pecuniary penalty in relation to a prescribed narcotics dealing or prescribed narcotics dealings during a particular period; and
(b) a restraining order is in force against:
(i) property of the person; or
(ii) property of another person in relation to which an order under subsection 243CA(2) is in force;
the Court may, on application by the Minister, the Commissioner of Police, the Comptroller‑General of Customs or the Director of Public Prosecutions, direct the Official Trustee to pay the Commonwealth, in accordance with this section, an amount equal to the penalty amount out of the property.
(3) For the purposes of enabling the Official Trustee to comply with a direction given by the Court under subsection (1), (2) or (2A), the Court may, in the order in which the direction is given or by a subsequent order:
(a) direct the Official Trustee to sell or otherwise dispose of such of the property that is subject to the restraining order as the Court specifies; and
(b) appoint an officer of the Court or any other person to execute any deed or instrument in the name of a person who owns or has an estate, interest or right in the property and to do any act or thing necessary to give validity and operation to the deed or instrument.
(4) The execution of the deed or instrument by the person appointed by an order under subsection (3) has the same force and validity as if the deed or instrument had been executed by the person who owned or had the estate, interest or right in the property.
(5) Where the Official Trustee is given a direction under subsection (1), (2) or (2A) in relation to property, the Official Trustee shall not:
(a) if the property is money—apply the money in accordance with subsection (6) until the end of the appeal period; and
(b) if the property is not money—sell or otherwise dispose of the property until the end of the appeal period.
(6) Where the Official Trustee is given a direction under subsection (1), (2) or (2A) in relation to property, the Official Trustee shall, as soon as practicable after the end of the appeal period:
(a) if the property is money:
(i) apply the money in payment of the costs, charges, expenses and remuneration, of the kind referred to in subsection 243P(1), incurred or payable in connection with the restraining order and payable to the Official Trustee under the regulations; and
(ii) subject to subsection (7), credit an amount equal to the remainder of the money to the Confiscated Assets Account as required by section 296 of the Proceeds of Crime Act 2002; and
(b) if the property is not money:
(i) sell or otherwise dispose of the property;
(ii) apply the proceeds of the sale or disposition in payment of the costs, charges, expenses and remuneration of the kind referred to in subsection 243P(1), incurred or payable in connection with the restraining order or the sale or disposition and payable to the Official Trustee under the regulations; and
(iii) subject to subsection (7), credit an amount equal to the remainder of those proceeds to the Confiscated Assets Account as required by section 296 of the Proceeds of Crime Act 2002.
(7) Where the amounts to which subparagraph (6)(a)(ii) or (b)(iii) applies exceeds the penalty amount, the Official Trustee must:
(a) credit to the Confiscated Assets Account as required by section 296 of the Proceeds of Crime Act 2002 an amount equal to the penalty amount; and
(b) pay the balance to the person whose property was subject to the restraining order.