46AEffect on third parties of registration of forfeiture orders

##### 46A Effect on third parties of registration of forfeiture orders Applications by third parties (1) If a court registers under section 45 a forfeiture order against property, a person who: (a) claims an interest (within the meaning of the Proceeds of Crime Act 2002) in the property; and (b) was not convicted of an offence in respect of which the order was made; may apply to the court for an order under subsection (2). Orders by the court (2) If, on an application for an order under this subsection, the court is satisfied that: (a) the applicant was not, in any way, involved in the commission of an offence in respect of which the forfeiture order was made; and (b) if the applicant acquired the interest in the property at the time of or after the commission of such an offence—the property was neither: (i) proceeds (within the meaning of the Proceeds of Crime Act 2002) of such an offence; nor (ii) an instrument (within the meaning of that Act) of such an offence; the court must make an order: (c) declaring the nature, extent and value (as at the time when the order is made) of the applicant’s interest in the property; and (d) either: (i) 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). Certain people need leave to apply (3) A person who was given notice of, or appeared at, the hearing held in connection with the making of the forfeiture order is not entitled to apply under subsection (1) unless the court gives leave. (4) The court may give leave if satisfied that there are special grounds for doing so. (5) Without limiting subsection (4), the court may grant a person leave if the court is satisfied that: (a) the person, for a good reason, did not attend the hearing referred to in subsection (3) although the person had notice of the hearing; or (b) particular evidence that the person proposes to adduce in connection with the proposed application under subsection (1) was not available to the person at the time of the hearing referred to in subsection (3). Period for applying (6) Unless the court gives leave, an application under subsection (1) is to be made before the end of 6 weeks beginning on the day when the forfeiture order is registered in the court. (7) The court may give leave to apply outside that period if the court is satisfied that the person’s failure to apply within that period was not due to any neglect on the person’s part. Procedural matters (8) A person who applies under subsection (1) must give to the Director of Public Prosecutions and the Attorney‑General notice, as prescribed, of the application. (9) The Director of Public Prosecutions is to be a party to proceedings on an application under subsection (1). The Attorney‑General may intervene in the proceedings. 5 Continued application of certain regulations made under the Proceeds of Crime Act 1987 If: (a) immediately after the commencement of this Schedule, regulations for the purposes of subsection 46A(8) of the International War Crimes Tribunals Act 1995 are not in force; and (b) immediately before that commencement, regulations for the purposes of subsection 23A(10) of the Proceeds of Crime Act 1987 were in force; subsection 46A(8) of the International War Crimes Tribunals Act 1995 has effect, until regulations for the purposes of that subsection come into force, as if the regulations referred to in paragraph (b) were regulations for the purposes of that subsection. Mutual Assistance in Criminal Matters Act 1987 6 Subsection 3(1) Insert: > account has the same meaning as in the Proceeds of Crime Act. 7 Subsection 3(1) Insert: > agent has the same meaning as in the Proceeds of Crime Act. 8 Subsection 3(1) (definition of ancillary offence) Repeal the definition, substitute: > ancillary offence, in relation to an offence (in this definition called the main offence), means: (a) an offence of conspiring to commit the main offence; or (b) an offence of aiding, abetting, inciting, counselling or procuring, or being in any way knowingly concerned in, the commission of the main offence; or (c) an offence of receiving or assisting another person in order to enable the person to escape punishment for, or to dispose of the proceeds of, the main offence; or (d) an offence of attempting to commit the main offence. 9 Subsection 3(1) (paragraph (a) of the definition of Australian forfeiture order) Omit “the Proceeds of Crime Act;”, substitute “a proceeds of crime law; or”. 10 Subsection 3(1) (after paragraph (a) of the definition of Australian forfeiture order) Insert: (aa) a declaration made under section 95 of the Proceeds of Crime Act; or 11 Subsection 3(1) (paragraph (ab) of the definition of Australian forfeiture order) Omit “Proceeds of Crime Act”, substitute “Proceeds of Crime Act 1987; or”. 12 Subsection 3(1) Insert: > Australian literary proceeds order means: (a) a literary proceeds order within the meaning of the Proceeds of Crime Act; or (b) an order, made under Australian law, that: (i) imposes a pecuniary penalty on a person in respect of an offence against Australian law; and (ii) is, in accordance with the regulations, to be taken to be an Australian literary proceeds order for the purposes of this Act. 13 Subsection 3(1) (paragraph (a) of the definition of Australian pecuniary penalty order) Omit “the Proceeds of Crime Act;”, substitute “a proceeds of crime law; or”. 14 Subsection 3(1) (paragraph (a) of the definition of Australian restraining order) Repeal the paragraph, substitute: (a) a restraining order within the meaning of a proceeds of crime law (other than a restraining order made by virtue of section 59 of the Proceeds of Crime Act 1987 or section 34K of this Act); or 15 Subsection 3(1) Insert: > authorised officer has the same meaning as in the Proceeds of Crime Act. 16 Subsection 3(1) Insert: > Confiscated Assets Account means the account established under section 295 of the Proceeds of Crime Act. 17 Subsection 3(1) Insert: > enforcement agency has the same meaning as in the Proceeds of Crime Act. 18 Subsection 3(1) Insert: > foreign confiscation proceedings means proceedings in a foreign country in respect of the making of a foreign forfeiture order or a foreign pecuniary penalty order. 19 Subsection 3(1) Insert: > foreign order means: (a) a foreign forfeiture order; or (b) a foreign pecuniary penalty order; or (c) a foreign restraining order. 20 Subsection 3(1) (definition of foreign organised fraud offence) Repeal the definition. 21 Subsection 3(1) Insert: > instrument, in relation to an offence, has the same meaning as in the Proceeds of Crime Act. 22 Subsection 3(1) Insert: > interest, in relation to property, has the same meaning as in the Proceeds of Crime Act. 23 Subsection 3(1) Insert: > narcotic substance has the same meaning as in the Proceeds of Crime Act. 24 Subsection 3(1) Insert: > officer, in relation to a financial institution, has the same meaning as in the Proceeds of Crime Act. 25 Subsection 3(1) Insert: > Official Trustee means the Official Trustee in Bankruptcy. 26 Subsection 3(1) (definition of proceeds) Repeal the definition, substitute: > proceeds, in relation to an offence, has the same meaning as in the Proceeds of Crime Act. 27 Subsection 3(1) Insert: > proceeds jurisdiction has the same meaning as in the Proceeds of Crime Act. 28 Subsection 3(1) (definition of Proceeds of Crime Act) Omit “1987”, substitute “2002”. 29 Subsection 3(1) Insert: > proceeds of crime law means: (a) the Proceeds of Crime Act 2002; or (b) the Proceeds of Crime Act 1987. 30 Subsection 3(1) Insert: > related foreign serious offence: a foreign serious offence is related to another foreign serious offence if the physical elements of the 2 offences are substantially the same acts or omissions. 31 Subsection 3(1) (definition of serious narcotics offence) Repeal the definition. 32 Subsection 3(1) (definition of tainted property) Repeal the definition. 33 Paragraph 32(b) After “pecuniary penalty order”, insert “, or an Australian literary proceeds order,”. 34 Paragraph 33(a) Repeal the paragraph. 35 Paragraphs 33(c) and (d) Omit “in respect of a property‑tracking document”. 36 Division 2 of Part VI Repeal the Division, substitute: