31Recovery of property to which section 30 applies

#### 31 Recovery of property to which section 30 applies (1) Where property is forfeited to the Commonwealth under section 30, a person who claims an interest in the property may, subject to subsections (2) and (4), apply to the court that made the relevant restraining order for an order under subsection (6) or (7). (2) The application shall, subject to subsection (3), be made before the end of the period of 6 months commencing on the day on which the property is forfeited to the Commonwealth. (3) The court may grant a person leave to apply after the end of the period referred to in subsection (2) if the court is satisfied that the delay in making the application is not due to neglect on the part of the applicant. (4) An application for an order under subsection (6) or (7) in relation to an interest in property shall not be made by a person who was given notice of: (a) proceedings on the application for the relevant restraining order; or (b) the making of the relevant restraining order; except with the leave of the court. (5) The court may grant a person leave to make an application if the court is satisfied that the person’s failure to seek to have the property excluded from the relevant restraining order was not due to any neglect on the part of the applicant. (6) Where a person applies for an order under this subsection in respect of an interest in property, the court may: (a) if satisfied that: (i) the applicant was not, in any way, involved in the commission of the relevant serious offence; (ia) the applicant’s interest in the property is not subject to the effective control of the defendant; and (ii) if the applicant acquired the interest at the time of or after the commission of the offence—the applicant acquired the interest: (A) for sufficient consideration; and (B) without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was tainted property; or (b) if satisfied that: (i) the property was not used in, or in connection with, any unlawful activity and was not derived or realised, directly or indirectly, by any person from any unlawful activity; and (ii) the applicant’s interest in the property was lawfully acquired; make an order: (c) declaring the nature, extent and value of the applicant’s interest in the property; and (d) either: (i) if the interest is still vested in the Commonwealth—directing the Commonwealth to transfer the interest to the applicant; or (ii) declaring that there is payable by the Commonwealth to the applicant an amount equal to the value declared under paragraph (c). (7) Where a person applies for an order under this subsection in respect of an interest in property, the court may, if satisfied that: (a) it would not be contrary to the public interest for the interest to be transferred to the person; and (b) there is no other reason why the interest should not be transferred to the person; by order: (c) declare the nature, extent and value (as at the time when the order is made) of the interest; and (d) declare that section 30 shall cease to operate in relation to the interest if payment is made in accordance with section 33. (7A) A person who makes an application under subsection (1) in respect of property shall give notice to the DPP and the Minister, as prescribed, of the making of the application. (7B) The DPP shall be a party to any proceedings upon an application under subsection (1) and the Minister may intervene in any such proceedings. (8) In this section: > defendant, in relation to property forfeited to the Commonwealth under section 30, means the person by virtue of whose conviction the property is forfeited. > relevant restraining order, in relation to property forfeited to the Commonwealth under section 30, means the restraining order by virtue of which the property is forfeited.