42Search for and seizure of tainted property in relation to foreign offences

#### 42 Search for and seizure of tainted property in relation to foreign offences (1) Where a police officer is authorised, under the Mutual Assistance Act, to apply to a magistrate of a State or Territory for a search warrant under this Act in relation to tainted property in respect of a foreign serious offence, the police officer may apply for the warrant accordingly and this Division applies to the application and to any warrant issued as a result of the application as if: (a) references in this Division to tainted property were references to tainted property in relation to the foreign serious offence; (b) references to a magistrate were references to a magistrate of the State or Territory specified in the police officer’s authorisation under the Mutual Assistance Act; and (c) subsection 36(5), paragraph 36(6)(b), subsection 36(9) and section 40 were omitted. (2) If, in the course of searching, under a warrant issued under section 36, for tainted property in relation to a foreign serious offence, a police officer finds: (a) any property that the police officer believes, on reasonable grounds, to be tainted property in relation to the foreign serious offence, although not of the kind specified in the warrant; (b) any property that the police officer believes, on reasonable grounds, to be tainted property in relation to another foreign serious offence in respect of which a search warrant under section 36 is in force; or (c) any thing that the police officer believes, on reasonable grounds: (i) to be relevant to a criminal proceeding in the foreign country in respect of the foreign serious offence; or (ii) will afford evidence as to the commission of a criminal offence; and the police officer believes, on reasonable grounds, that it is necessary to seize that property or thing in order to prevent its concealment, loss or destruction, or its use in committing, continuing or repeating the offence, the warrant shall be deemed to authorise the police officer to seize that property or thing. (3) Where property has been seized under a warrant issued under section 36 in respect of a foreign serious offence, a person who claims an interest in the property may apply to the Supreme Court of the State or Territory in which the warrant was issued for an order that the property be returned to the person. (4) Where a person makes an application under subsection (3) and the court is satisfied that: (a) the person is entitled to possession of the property; (b) the property is not tainted property in relation to the relevant foreign serious offence; and (c) the person who is believed or alleged to have committed the relevant foreign serious offence has no interest in the property; the court shall order the Commissioner to return the property to the person and where such an order is made the Commissioner shall arrange for the property to be returned to the person. (5) Where: (a) property has been seized under a warrant issued under section 36 in respect of a foreign serious offence; and (b) at the end of the period of 30 days after the day on which the property was seized: (i) neither a foreign restraining order, nor a foreign forfeiture order, in relation to the property has been registered in a court in Australia under the Mutual Assistance Act; and (ii) a restraining order has not been made under this Act in respect of the property in relation to the foreign serious offence; the Commissioner shall, subject to subsections (6) and (7), arrange for the property to be returned to the person from whose possession it was seized as soon as practicable after the end of that period. (6) Where: (a) property has been seized under a warrant issued under section 36 in respect of a foreign serious offence; (b) but for this subsection, the Commissioner would be required to arrange for the property to be returned to the person as soon as practicable after the end of a particular period; and (c) before the end of that period: (i) a foreign restraining order in relation to the property is registered in a court in Australia under the Mutual Assistance Act; or (ii) a restraining order is made under this Act in respect of the property in relation to the foreign serious offence; the following provisions have effect: (d) if there is in force, at the end of that period, a direction by a court that the Official Trustee take custody and control of the property—the Commissioner shall arrange for the property to be given to the Official Trustee in accordance with the direction; (e) if there is in force at the end of that period an order under subsection (7) in relation to the property—the Commissioner shall arrange for the property to be kept until it is dealt with in accordance with another provision of this Act. (7) Where: (a) property has been seized pursuant to a warrant issued under section 36 in respect of a foreign serious offence; (b) either: (i) a foreign restraining order in respect of the property has been registered in an Australian court under the Mutual Assistance Act; or (ii) a restraining order is made under this Act in respect of the property in relation to the foreign serious offence; and (c) at the time when the restraining order is registered or made, the property is in the possession of the Commissioner; the Commissioner may apply to the court in which the restraining order was registered, or by which the restraining order was made, for an order that the Commissioner retain possession of the property and the court may, if satisfied that the property is required by the Commissioner to be dealt with in accordance with a request under the Mutual Assistance Act by the foreign country that requested the registration of, or the obtaining of, the restraining order, make an order that the Commissioner may retain the property for so long as the property is so required. (8) Where: (a) property has been seized under a warrant issued under section 36 in respect of a foreign serious offence; and (b) while the property is in the possession of the Commissioner a foreign forfeiture order in respect of the property is registered in a court in Australia under the Mutual Assistance Act; the Commissioner shall deal with the property as required by the forfeiture order. (9) Where: (a) a warrant is issued under section 36 in respect of a foreign serious offence; and (b) property is seized pursuant to the warrant because it may afford evidence as to the commission of a criminal offence; the property shall, for the purposes of subsections (3), (4), (5), (6) and (7) of this section, be taken not to be property seized pursuant to the warrant.