(8) Where the Official Trustee credits, in accordance with a direction under this section, an amount to the Confiscated Assets Account as required by section 296 of the Proceeds of Crime Act 2002 in satisfaction of a person’s liability under an order under section 243B, the person’s liability under the order shall, to the extent of the payment be deemed to be discharged.
(9) Where:
(a) a restraining order is made against property in reliance on a particular prescribed narcotics dealing engaged in by the person or prescribed narcotics dealings engaged in by the person during a particular period; and
(b) before or after the restraining order is made, an order under section 243B has been or is made against the person in reliance on the prescribed narcotics dealing or prescribed narcotics dealings;
the appeal period in respect of the property is the period ending:
(c) if the period provided for the lodging of an appeal against the making of the order under section 243B has ended without such an appeal having been lodged—at the end of that period; or
(d) if an appeal against the making of the order under section 243B has been lodged—when the appeal lapses or is finally determined.
243H Revocation of order under section 243E
(1) Where, after a restraining order has been made in relation to a proceeding for the recovery of a pecuniary penalty:
(a) no pecuniary penalty is imposed upon the determination of that proceeding;
(b) the pecuniary penalty imposed upon the determination of that proceeding is paid; or
(c) the Court is satisfied that it is, in all the circumstances, proper to do so;
the Court may, upon application being made to it by a person authorized to make an application under section 243F, revoke that order.
(2) The revocation of a restraining order that was made in relation to a proceeding for the recovery of a pecuniary penalty does not prevent the Court from making a further restraining order in relation to that proceeding.
(3) Without limiting the powers of the Court to make an order under subsection (1), the Court may revoke a restraining order upon the applicant:
(a) giving security satisfactory to the Court for the payment of any pecuniary penalty that may be imposed on him or her in the relevant proceeding; or
(b) giving undertakings satisfactory to the Court concerning the property of the applicant.
(4) Where the Court revokes or has revoked a restraining order, the Court may make such order or orders as it deems proper for or in relation to the discharge of the Official Trustee concerned from all liability in respect of the exercise by it of the powers conferred on it, and the performance by it of the duties imposed on it, under this Division in respect of the property of the person to whom the restraining order related.
243J Pecuniary penalty a charge on property
(1) Where the Court makes, in relation to a proceeding (in this section referred to as the relevant proceeding) for the recovery of a pecuniary penalty from a person, a restraining order against property, upon the making of the order, there is created, by force of this section, a charge, on all the property to which the order relates, to secure the payment to the Commonwealth of any pecuniary penalty that the person may be ordered to pay in the relevant proceeding.
(2) Where a charge is created by subsection (1) on any property of a person upon the making of a restraining order, the charge ceases to have effect in respect of the property:
(a) upon the order ceasing to apply to the property by reason of the variation or revocation of the order; or
(b) upon the determination of the relevant proceeding by way of the refusal of the Court to make an order for the payment of a pecuniary penalty by the person; or
(c) upon payment by the person of any pecuniary penalty that he or she has been ordered to pay in the relevant proceeding; or
(d) upon the person becoming a bankrupt; or
(e) upon the sale or other disposition of the property:
(i) in pursuance of a direction of the Court under section 243G; or
(ii) by the owner of the property with the consent of the Court or of the Official Trustee; or
(f) upon the sale of the property to a bona fide purchaser for value who, at the time of purchase, has no notice of the charge;
whichever first occurs.
(3) The charge created on property by subsection (1):
(a) is subject to every charge or encumbrance to which the property was subject immediately before the order was made;
(b) has priority over all other encumbrances whatsoever; and
(c) subject to subsection (2), is not affected by any change of ownership of the property.
(4) Where a charge is created by subsection (1) on property of a particular kind and the provisions of any law of the Commonwealth or of a State or Territory provide for the registration of title to, or charges over, property of that kind, the Official Trustee or the person who applied for the restraining order against that property may cause the charge so created to be registered under the provisions of that law and, if the Official Trustee or the person who applied for the restraining order, as the case may be, does so, a person who purchases or otherwise acquires the property after the registration of the charge shall, for the purposes of subsection (2), be deemed to have notice of the charge.
243K Contravention of restraining orders
(1) A person who intentionally contravenes a restraining order by disposing of, or otherwise dealing with, property that is subject to the restraining order commits an offence.
Penalty: Imprisonment for 5 years.
(2) Where:
(a) a restraining order is made against property;
(b) the property is disposed of, or otherwise dealt with, in contravention of the restraining order; and
(c) the disposition or dealing was either not for sufficient consideration or not in favour of a person who acted in good faith;
the Minister, the Commissioner of Police, the Comptroller‑General of Customs or the Director of Public Prosecutions may apply to the Court for an order that the disposition or dealing be set aside.
(3) Where an application is made under subsection (2) in relation to a disposition or dealing, the Court may make an order:
(a) setting the disposition or dealing aside as from the day on which it took place; or
(b) setting the disposition or dealing aside as from the day of the order under this subsection and declaring the respective rights of any persons who acquired interests in the property on or after the day on which the disposition or dealing took place and before the day of the order under this subsection.
243L Sale of property before bankruptcy
(1) Where:
(a) the Commonwealth has, within 6 months before the presentation of a petition, or after the presentation of a petition, against a person, received moneys from the Official Trustee or an Official Receiver in pursuance of a direction under section 243G in relation to the liability of the person to pay a pecuniary penalty; and
(b) the person subsequently becomes a bankrupt on, or by virtue of the presentation of, the petition;
the Commonwealth shall pay to the trustee in the bankruptcy an amount equal to the amount paid to the Commonwealth in accordance with the direction, less the taxed costs of the Minister, the Commissioner of Police, the Comptroller‑General of Customs or the Director of Public Prosecutions in respect of the making of the direction under section 243G.
(2) Where the Commonwealth has paid to the trustee in bankruptcy an amount in accordance with subsection (1), the Commonwealth may prove in the bankruptcy for its debt as an unsecured creditor as if the order under section 243G had not been made.
(3) Notwithstanding anything contained in the Bankruptcy Act 1966, a person who purchases in good faith, property of a person who, after the purchase, becomes a bankrupt, under a sale of the property in pursuance of a direction given under section 243G acquires a good title to it as against the trustee in the bankruptcy.
243M Duties of the Official Trustee after receiving notice of presentation of creditor’s petition etc.
(1) Where, after the Official Trustee has been directed under subsection 243G(1) or (2) to pay an amount to the Commonwealth in relation to the liability of a person to pay a pecuniary penalty, notice in writing of the presentation of a creditor’s petition against the person is given to the Official Trustee, the Official Trustee:
(a) shall refrain from taking action to sell property of the person in pursuance of any direction to do so contained in an order under that section; and
(b) shall not pay any moneys in pursuance of the direction to do so contained in the first‑mentioned order;
until the petition has been dealt with by a bankruptcy court or has lapsed.
(2) Where, after the Official Trustee has been directed under subsection 243G(1) or (2) to pay an amount to the Commonwealth in relation to the liability of a person to pay a pecuniary penalty, notice in writing of the reference to a bankruptcy court of a debtor’s petition against the person is given to the Official Trustee, the Official Trustee:
(a) shall refrain from taking action to sell property of the person in pursuance of any direction to do so contained in an order under that section; and
(b) shall not pay any moneys in pursuance of the direction to do so contained in the first‑mentioned order;
until a bankruptcy court has dealt with the petition.
(3) Where a person who is liable to pay a pecuniary penalty becomes a bankrupt (whether on a creditor’s petition or otherwise), any property of the person in the possession, or under the control, of the Official Trustee in accordance with an order made under this Division shall be deemed to be in the possession, or under the control, of the Official Trustee as, or on behalf of, the trustee of the estate of the bankrupt, and not otherwise.
(4) In this section, bankruptcy court means a court having jurisdiction in bankruptcy under the Bankruptcy Act 1966.
243N Protection of Official Trustee from personal liability in certain cases
(1) Where:
(a) the Court has made a restraining order directing the Official Trustee to take custody and control of property of a person;
(b) the Official Trustee has taken custody and control of any property in the possession, or on the premises, of the person without notice of any claim by another person in respect of that property; and
(c) the person did not, at the date of the order, have any beneficial interest in the property referred to in paragraph (b);
the Official Trustee is not personally liable for any loss or damage arising from its having taken custody and control of the property sustained by a person claiming the property or an interest in the property, or for the cost of proceedings taken to establish a claim to the property or to an interest in the property, unless the court in which the claim is made is of the opinion that the Official Trustee has been guilty of negligence in respect of the taking of custody and control of the property.
(2) Where the Official Trustee has, in accordance with a restraining order, taken custody and control of property of a person specified in the order, the Official Trustee is not personally liable for any loss or damage arising from its having taken custody and control of the property (being loss or damage sustained by some other person claiming the property or an interest in the property), or for the cost of proceedings taken to establish a claim to the property, or to an interest in the property, unless the court in which the claim is made is of the opinion that the Official Trustee has been guilty of negligence in respect of the taking of custody and control of the property.
(3) The Official Trustee is not personally liable for any rates, land tax or municipal or other statutory charges imposed by or under a law of the Commonwealth or of a State or Territory upon or in respect of property of which it has been directed by a restraining order to take custody and control, being rates, land tax or municipal or other statutory charges that fall due on or after the date of that order, except to the extent, if any, of the rents and profits received by the Official Trustee in respect of that property on or after the date of that order.
(4) Where the Official Trustee who has been directed by a restraining order to take custody and control of a business carried on by a person carries on that business, the Official Trustee is not personally liable for any payment in respect of long service leave for which the person was liable or for any payment in respect of long service leave to which a person employed by the Official Trustee in its capacity of manager of the business, or the legal personal representative of such a person, becomes entitled after the date of that order.
243NA Indemnification of Official Trustee
(1) The Commonwealth is by force of this subsection liable to indemnify the Official Trustee against any personal liability (including any personal liability as to costs) incurred by it for any act done, or omitted to be done, by it in the exercise, or purported exercise, of its powers and duties under this Division.
(2) Nothing in subsection (1) affects:
(a) any right that the Official Trustee has, apart from that subsection, to be indemnified in respect of any personal liability referred to in that subsection; or
(b) any other indemnity given to the Official Trustee in respect of any such personal liability.
(3) Where the Commonwealth makes a payment in accordance with the indemnity referred to in subsection (1), the Commonwealth has the same right of reimbursement in respect of the payment (including reimbursement under another indemnity given to the Official Trustee) as the Official Trustee would have if the Official Trustee had made the payment.
243NB Indemnification of Official Receivers etc.
(1) The Commonwealth shall indemnify a person to whom this subsection applies against any liability incurred by the person:
(a) for any act done negligently, or negligently omitted to be done, by the person in the performance of the person’s duties in relation to this Division; or
(b) for any act done by the person in good faith in the purported performance of the person’s duties in relation to this Division.
(2) Subsection (1) applies to:
(a) persons who are Official Receivers under the Bankruptcy Act 1966;
(b) persons who perform any of the duties of such an Official Receiver in relation to this Division; or
(c) persons who assist such an Official Receiver in the performance of the Official Receiver’s duties in relation to this Division.
243P Costs etc. payable to Official Trustee
(1) The regulations may make provision for or in relation to:
(a) the costs, charges and expenses incurred in connection with; and
(b) the Official Trustee’s remuneration in respect of;
the performance or exercise by the Official Trustee of functions, duties or powers under this Division.
(2) An amount equal to each amount of remuneration that the Official Trustee receives under the regulations shall be paid to the Commonwealth.
(3) Where there are no regulations in relation to a matter referred to in subsection (1):
(a) the regulations referred to in section 288 of the Proceeds of Crime Act 2002 shall apply, so far as they are applicable, and with appropriate changes, in relation to the matter; and
(b) a reference in this Division (other than in this subsection) to regulations in relation to the matter shall be taken to be a reference to the regulations referred to in section 288 of the Proceeds of Crime Act 2002.
243Q Notices
(1) Subject to subsection (2), where the Court makes a restraining order, or an order under section 243CA or 243F, against a person’s property, the person who applied for the order (in this section called the applicant) shall give the person written notice of the order.
(2) Where:
(a) the Court makes a restraining order against a person’s property; and
(b) the Court is satisfied that it would be in the public interest to delay giving notice of the order to the person;
the Court may order that giving the person notice of the order be delayed for such period as is specified in the order under this subsection and the applicant shall give the person notice of the restraining order as soon as practicable after the end of the period specified.
243R Reduction of pecuniary penalty
(1) Where, before the Court makes an order directing a person to pay a pecuniary penalty in respect of a particular prescribed narcotics dealing engaged in by him or her, or of prescribed narcotics dealings engaged in by him or her during a particular period, any property of the person to which section 229A applied by reason of that prescribed narcotics dealing, or of a prescribed narcotics dealing during that period, had been seized as forfeited goods:
(a) if, before the imposition of the penalty, the property had been condemned or was deemed to have been condemned—the penalty shall be deemed to be reduced by an amount equal to the value of the property at the time when it was seized; and
(b) if, after the imposition of the penalty and before the penalty is paid, the property is condemned or is deemed to be condemned or the person consents to the forfeiture of the property—the liability of the person in respect of the penalty shall be deemed to be reduced by an amount equal to the value of the property at the time when it was seized; and
(c) if the penalty is paid before the property is condemned or is to be deemed to be condemned—the Commonwealth is liable to pay to the person an amount equal to the value of the property at the date of its seizure.