106Forfeiture or return of things seized or retained

106 Forfeiture or return of things seized or retained S. 106(1) amended by Nos 69/2004 s. 9(1), 21/2011 s. 5(1). (1) If any fishing equipment seized is equipment the possession, sale or use of which is prohibited by this Act, the regulations or a fisheries notice, the equipment is forfeited to the Crown. S. 106(1A) inserted by No. 21/2011 s. 5(2). (1A) If any fish, protected aquatic biota or noxious aquatic species seized has been taken or is possessed in contravention of this Act, the regulations or a fisheries notice, the fish, protected aquatic biota or noxious aquatic species is forfeited to the Crown. S. 106(2) amended by No. 68/2016 s. 101(1). (2) If any thing seized is not required as evidence in any proceedings, the chief executive officer may authorise the return of the thing on such conditions as the chief executive officer considers appropriate, including a condition that the person give security to the chief executive officer for payment of the value of the thing if it is forfeited. S. 106(3) amended by No. 68/2016 s. 101(2). (3) If the thing returned under subsection (2) is forfeited to the Crown, the security given in lieu of the thing is taken to be forfeited to the Crown and must be paid into the Consolidated Fund. (4) A person must not contravene a condition imposed under subsection (2). S. 106(5) amended by Nos 69/2004 s. 9(1), 35/2009 s. 66(2), 68/2009 s. 97(Sch. item 58.2), substituted by No. 21/2011 s. 5(3). (5) A court finding any offence proven in respect of a thing seized or subject to a retention notice under this Act may order— (a) in the case of a thing seized, if the thing is not subject to forfeiture to the Crown under subsection (1) or (1A)— (i) the forfeiture of the thing; or (ii) the return of the thing to the person found guilty of the offence or the owner of the thing; (b) in the case of a thing subject to a retention notice, if the thing, had it been seized, would not have been subject to forfeiture to the Crown under subsection (1) or (1A)— (i) the forfeiture of the thing; or (ii) the cancellation of the retention notice and return of the thing to the person found guilty of the offence or the owner of the thing. S. 106(5A) inserted by No. 17/2002 s. 20(1), substituted by No. 69/2004 s. 9(2). (5A) A court must order the forfeiture of the thing under subsection (5) if the person in respect of whom the court found an offence proven has previously been convicted or found guilty on 2 or more occasions of— S. 106(5A)(a) amended by No. 40/2019 s. 25(1). (a) an offence involving priority species under section 36(1), 37(1), 40(1), 67(3), 68A(4B), 68A(5), 68B(1), 111A, 111B, 111C, 114(3), 116(1), 116(2A), 119A, 119B, 130(4), 130A(5) or 130B(6); or (b) an associated offence in relation to an offence referred to in paragraph (a). S. 106(6) amended by Nos 17/2002 s. 20(2)(a)(b), 68/2016 s. 101(3). (6) Subject to subsection (6A), if anything is seized under this Act but proceedings are not commenced against any person for any offence arising out of the circumstances of the seizure within 90 days after the seizure or proceedings are commenced within 90 days after the seizure but are subsequently discontinued, the chief executive officer must order the return of the thing to the owner immediately and must notify the owner in writing accordingly. S. 106(6A) inserted by No. 17/2002 s. 20(3), substituted by No. 21/2011 s. 5(4). (6A) Subsection (6) does not apply to any thing— (a) that is subject to forfeiture to the Crown under subsection (1) or (1A); or S. 106(6A)(b) amended by No. 40/2019 s. 25(2). (b) the sale, possession or use of which is prohibited by or under this or any other Act. S. 106(6B) inserted by No. 40/2019 s. 25(3). (6B) If any thing is seized under this Act but is not returned to the owner because the sale, possession or use of the thing is prohibited under another Act, the thing must be dealt with in accordance with that other Act. S. 106(7) amended by No. 68/2016 s. 101(3). (7) If anything is seized under this Act and is not forfeited to the Crown and the reason for its seizure no longer exists, the chief executive officer must take reasonable steps to return the thing to the owner. S. 106(8) amended by No. 21/2011 s. 5(5). (8) Any thing forfeited under this section, or seized under this Act and not claimed within 12 months after the seizure, may be destroyed or be sold and the proceeds of sale paid to the Consolidated Fund. S. 106AA inserted by No. 21/2011 s. 6. 106AA Actions that may be taken in the case of seized things subject to automatic forfeiture (1) If an authorised officer seizes any thing under this Act, which is subject to forfeiture to the Crown under section 106(1) or (1A), any of the following actions may be taken— (a) the officer may give a disposal notice that complies with section 106AB to the owner of the thing, or the person who had possession, control or custody of the thing, immediately before it was seized; S. 106AA(1)(b) amended by No. 68/2016 s. 102. (b) the chief executive officer or an authorised officer may apply under section 106AE to a court for a condemnation order in respect of the thing; (c) the thing may be disposed of as the Minister directs. (2) Nothing in this section affects any other power to dispose of a thing under this Act. Under section 107(1) seized live fish or protected aquatic biota may be returned to their natural habitat by an authorised officer if the officer thinks it appropriate and practicable to do so. S. 106AB inserted by No. 21/2011 s. 6. 106AB Disposal notice For the purposes of section 106AA(1)(a), a disposal notice must— (a) describe the thing seized; and (b) identify the provision of this Act under which the thing was seized and the grounds for the seizure; and (c) state that— (i) the thing may be disposed of; and S. 106AB(c)(ii) amended by No. 68/2016 s. 103. (ii) the thing will be taken to be condemned as forfeited to the Crown unless the person to whom the notice is given makes a claim in accordance with section 106AC to the chief executive officer for the return of the thing within 28 days after being given the disposal notice; and S. 106AB(d) amended by No. 68/2016 s. 103. (d) set out the address of the chief executive officer to which the claim must be sent; and (e) set out the requirements for making the claim under section 106AC. S. 106AC (Heading) amended by No. 68/2016 s. 104(1). S. 106AC inserted by No. 21/2011 s. 6. 106AC Person may claim return of seized thing from chief executive officer S. 106AC(1) amended by No. 68/2016 s. 104(2). (1) A person to whom a disposal notice is given may make a claim to the chief executive officer for return of the thing seized and described in the notice. (2) The claim must— (a) be made within 28 days after being given the disposal notice; and (b) be written in English; and (c) set out an address for service on the person. S. 106AD inserted by No. 21/2011 s. 6. 106AD Seized thing condemned if not claimed in time If a person to whom a disposal notice is given does not make a claim in accordance with section 106AC for the return of the thing seized within 28 days after being given the disposal notice, the thing is by virtue of this section taken to be condemned as forfeited to the Crown. S. 106AE inserted by No. 21/2011 s. 6. 106AE Court may make a condemnation order in respect of thing forfeited to Crown S. 106AE(1) amended by No. 68/2016 s. 105. (1) A court may, on the application of the chief executive officer or an authorised officer, and whether or not in connection with any proceeding under this Act, make an order in respect of a thing seized under this Act that is subject to forfeiture to the Crown under section 106(1) or (1A) condemning the thing as forfeited to the Crown (a ***condemnation order***). (2) The court may adjourn an application to enable notice of the application to be given to any person. S. 106AF inserted by No. 21/2011 s. 6. 106AF Payment of infringement penalty not to affect certain actions Any action described in section 106AA in respect of a thing seized may be taken despite the payment of the penalty for any infringement notice served in respect of an offence relating to the seizure of the thing. S. 106A inserted by No. 17/2002 s. 21.