Document ID: chunk:federal_register_of_legislation:C2018A00034:clause:1_40at:p1
Version: federal_register_of_legislation:C2018A00034
Segment Type: clause
Provision Reference: sch 1 cl 40AT (pt 1/2)
Character Range: 109982–112573

40AT  Dealing with certain seized property
 (1) Property must be dealt with in accordance with this section if:
 (a) it has been seized under a POCA search warrant in relation to a Tribunal offence; and
 (b) it is not:
 (i) evidential material; or
 (ii) property of a kind referred to in subparagraph 40AR(a)(iv) or (v).

General rule—property to be returned after 30 days
 (2) If, at the end of the period of 30 days after the day the property was seized:
 (a) a forfeiture order in relation to the property has not been registered in a court under Part 6; and
 (b) a restraining order has not been made as described in Subdivision B in respect of the property in relation to the Tribunal offence;
the responsible enforcement agency head must, unless subsection (3), (5) or (7) applies, 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.

Effect of restraining orders being registered or obtained
 (3) If, before the end of that period, a restraining order is made as described in Subdivision B in respect of the property in relation to the Tribunal offence, the responsible enforcement agency head:
 (a) 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—must arrange for the property to be given to the Official Trustee in accordance with the direction; or
 (b) if there is in force at the end of that period an order under subsection (6) in relation to the property—must arrange for the property to be retained until it is dealt with in accordance with another provision of this Act or the Proceeds of Crime Act 2002.
 (4) If the property is subject to a direction of a kind referred to in paragraph (3)(a), the Proceeds of Crime Act 2002 applies to the property as if it were controlled property within the meaning of that Act.

Retaining property despite restraining orders
 (5) If, at a time when the property is in the possession of the responsible enforcement agency head, a restraining order has been made as described in Subdivision B in respect of the property in relation to the Tribunal offence, the responsible enforcement agency head may apply:
 (a) to the court in which the restraining order was registered; or
 (b) to the court by which the restraining order was made;
for an order that the responsible enforcement agency head retain possession of the property.
 (6) If the court is satisfied that the responsible enforcement agency head requires the property to be retained to give effect to