S. 3(1) def. of appeal period amended by No. 68/2009 s. 97(Sch. item 23.2). appeal period, in relation to the conviction of an accused of an offence, means the period ending— (a) if the period provided for the lodging of an appeal against the conviction has ended without such an appeal having been lodged, at the end of that period; or (b) if an appeal against the conviction has been lodged, when the appeal is abandoned or finally determined; appropriate officer means— s. 3 (a) in the case of an application to the Magistrates' Court or the Children's Court—the Chief Commissioner of Police; or (b) in the case of an application that is prescribed by the regulations for the purposes of this paragraph or is of a class of applications that is so prescribed—a person so prescribed or a person belonging to a class of persons so prescribed; S. 3(1) def. of AUSTRAC CEO inserted by No. 68/2010 s. 4(1). AUSTRAC CEO means the Chief Executive Officer of the Australian Transaction Reports and Analysis Centre continued in existence by section 209 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 of the Commonwealth; S. 3(1) def. of automatic forfeiture amended by No. 87/2004 s. 5(a). s. 3 automatic forfeiture means— (a) forfeiture under section 35; or (b) the making of a pecuniary penalty order on an application under section 58(1) if section 68 applies in relation to the Schedule 2 offence;
(b) the making of a pecuniary penalty order under Division 2 of Part 8; S. 3(1) def. of civil forfeiture offence amended by No. 104/2003 s. 5(2), repealed by No. 87/2004 s. 5(b). * * * * * civil forfeiture order means an order made under Part 4; conversion costs means costs referred to in section 135; corresponding law, in relation to this Act or a provision of this Act, means a law of the Commonwealth or another State or a Territory that is declared by the regulations to be a law that corresponds to this Act or the provision; court means Supreme Court or County Court or, subject to section 12, the Magistrates' Court or Children's Court, as the case requires; credit union means a credit union or credit society carrying on business under an Act or the laws of another State or a Territory; s. 3 S. 3(1) def. of defendant repealed by No. 68/2009 s. 97(Sch. item 23.3). * * * * * S. 3(1) def. of derived property inserted by No. 42/2007 s. 4(1), amended by No. 68/2009 s. 97(Sch. item 23.4). derived property means property— (a) used in, or in connection with, any unlawful activity by— (i) the accused; or
S. 3(1) def. of domestic partner inserted by No. 42/2007 s. 4(1), substituted by No. 12/2008 s. 73(1)(Sch. 1 item 7.1). domestic partner of a person means— (a) a person who is in a registered relationship with the person; or (b) an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person— (i) for fee or reward; or (ii) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation); DPP means Director of Public Prosecutions for ; s. 3 encumbrance, in relation to property, includes any interest, mortgage, charge, right, claim or demand which is or may be had, made or set up in, to, on or in respect of the property; examination order means an order made under Part 12; exclusion order means an order made under section 21, 22, 24, 50(1), 52(1) or 54(1); facsimile copy means a copy obtained by facsimile transmission;
S. 3(1) def. of spouse inserted by No. 42/2007 s. 4(1). spouse of a person means a person to whom that person is married; S. 3(1) def. of sufficient consideration inserted by No. 42/2007 s. 4(3). sufficient consideration, in relation to property, means consideration that reflects the market value of the property and does not include— (a) consideration arising from the fact of a family relationship between the transferor and transferee; (b) if the transferor is the spouse or domestic partner of the transferee, the making of a deed in favour of the transferee; s. 3 (c) a promise by the transferee to become the spouse or domestic partner of the transferor; (d) consideration arising from love and affection; (e) transfer by way of gift; S. 3(1) def. of tainted property amended by Nos 63/2003 s. 4(5)(a)(b), 104/2003 s. 5(3), 42/2007 s. 4(2), 68/2009 s. 97(Sch. item 23.6). tainted property, in relation to an offence, means property that— (a) was used, or was intended by the accused to be used in, or in connection with, the commission of the offence; or (b) was derived or realised, or substantially derived or realised, directly or indirectly, from property referred to in paragraph (a); or (c) was derived or realised, or substantially derived or realised, directly or indirectly, by any person from the commission of the offence; or
S. 17(1) amended by No. 87/2004 s. 8(5), substituted by No. 79/2006 s. 10. s. 17 (1) If, having regard to the matters referred to in subsection (1A), the court is satisfied that the circumstances of the case justify the giving of notice to a person affected, the court may direct an applicant under section 16(1) or 16(2) to give notice of the application to any person whom the court has reason to believe has an interest in the property that is the subject of the application. S. 17(1A) inserted by No. 79/2006 s. 10. (1A) In determining whether the circumstances of the case justify the giving of notice, the court must have regard to— (a) the aim of preserving the property that is the subject of the application so as to ensure its availability for the purpose for which the restraining order is sought; and (b) any jeopardy to an investigation by a law enforcement agency into criminal activity that could result from the giving of notice; and s. 17 (c) any risk to the safety or security of a person, including a potential witness in any criminal proceeding, that could result from the giving of notice; and (d) the provision made by this Act to enable a person claiming an interest in property the subject of a restraining order to apply for an exclusion order to protect that interest from the operation of the restraining order; and (e) the limited duration of a restraining order; and (f) the submissions, if any, made by the applicant in relation to the giving of notice. S. 17(1B) inserted by No. 79/2006 s. 10. (1B) In determining whether to direct an applicant to give notice of an application under section 16(1) or 16(2), the court may have regard to any other matter that the court considers relevant.
(ii) will not be required to satisfy any purpose for which the restraining order was made— the court may make an order excluding the applicant's interest in the property from the operation of the restraining order; or S. 21(b) amended by No. 68/2009 s. 97(Sch. item 23.19). (b) if the applicant is a person other than the accused and— S. 21(b)(i) amended by No. 42/2007 s. 5(1)(b). (i) the court is not satisfied as specified in paragraph (a)(i), the court may make an order excluding the applicant's interest in the property from the operation of the restraining order if satisfied that— S. 21(b)(i)(A) amended by No. 87/2004 s. 22(1)(b). (A) the applicant was not, in any way, involved in the commission of the Schedule 1 offence; and S. 21(b)(i)(B) amended by Nos 87/2004 s. 22(1)(b), 68/2009 s. 97(Sch. item 23.19). (B) where the applicant acquired the interest before the commission, or alleged commission, of the Schedule 1 offence, the applicant did not know that the accused would use, or intended to use, the property in, or in connection with, the commission of the Schedule 1 offence; and s. 21 S. 21(b)(i)(C) amended by No. 87/2004 s. 22(1)(b). (C) where the applicant acquired the interest at the time of or after the commission, or alleged commission, of the Schedule 1 offence, the applicant acquired the interest without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was tainted property; and
S. 22 amended by Nos 87/2004 s. 11(a), 68/2010 s. 14(3) (ILA s. 39B(1)). 22 Determination of exclusion application—restraining order—automatic forfeiture s. 22 (1) On an application made under section 20, where the restraining order has been made in relation to a Schedule 2 offence for the purposes of automatic forfeiture— S. 22(a) amended by Nos 43/1998 s. 39(a), 42/2007 s. 6(1)(a). (a) the court may make an order excluding the applicant's interest in the property from the operation of the restraining order if the court is satisfied that— (i) the property in which the applicant claims an interest was lawfully acquired by the applicant; and S. 22(a)(ii) substituted by No. 87/2004 s. 11(b). (ii) the property is not tainted property; and S. 22(a)(iia) inserted by No. 42/2007 s. 6(2). (iia) the property is not derived property; and (iii) the property will not be required to satisfy any pecuniary penalty order or an order for restitution or compensation under the Sentencing Act 1991; or S. 22(b) amended by Nos 42/2007 s. 6(1)(b), 68/2009 s. 97(Sch. item 23.20). (b) where the application is made by a person other than the accused, the court may make an order excluding the applicant's interest in the property from the operation of the restraining order— S. 22(b)(i) amended by No. 42/2007 s. 6(3). (i) if the court is not satisfied that the property in which the person claims an interest is not tainted property or derived property but is satisfied that—
(2) An order under subsection (1) may be made on the application of— (a) the applicant for the restraining order; or S. 26(2)(b) amended by No. 68/2009 s. 97(Sch. item 23.21). (b) the accused; or (c) a person to whose property the restraining order relates or who has an interest in that property; or (d) a trustee—if the restraining order directed the trustee to take control of property; or S. 26(2)(da) inserted by No. 43/1998 s. 13. (da) a prescribed person, or a person belonging to a prescribed class of persons; or (e) any other person who obtains the leave of the court to apply. (3) Any person referred to in subsection (2) is entitled to appear and to give evidence at the hearing of an application under this section but the absence of that person does not prevent the court from making an order. (4) The applicant for an order under subsection (1) must give written notice of the application to each other person referred to in paragraphs (a) to (d) of subsection (2) who could have applied for the order. (5) Examples of the kind of order that the court may make under subsection (1) are— (a) an order varying the property to which the restraining order relates; (b) an order varying any condition to which the restraining order is subject; s. 26
(c) if an interstate restraining order directed a person to take control of the property, the person or, if that person entered into an agreement with a trustee to act as the agent of the person, the trustee— is deemed to be a person mentioned in section 89 of the Transfer of Land Act 1958. Note to s. 28 inserted by No. 42/2007 s. 18(Sch. item 8). Note Section 14 provides that a restraining order may be made in respect of property or an interest in property. 29 Contravention of restraining order s. 29 (1) A person who knowingly contravenes a restraining order by disposing of, or otherwise dealing with, an interest in property to which the order applies is guilty of an indictable offence and liable to— (a) level 5 imprisonment (10 years maximum); or (b) a level 5 fine (1200 penalty units maximum) or a fine not exceeding the value of the interest (as determined by the court), whichever is greater— or to both. S. 29(2) amended by No. 42/2007 s. 18(Sch. item 9). (2) If the prescribed particulars referred to in section 28(1) are recorded as required by that section, a person who disposes of, or otherwise deals with, an interest in the property after the recording of those particulars is, for the purposes of subsection (1), to be taken to know of the restraining order.
S. 32(1) amended by Nos 87/2004 s. 22(1)(d), 68/2009 s. 97(Sch. item 23.23). s. 32 (1) If an accused is convicted of a Schedule 1 offence, the DPP or an appropriate officer may apply to the Supreme Court or the court before which the accused was convicted of the offence for a forfeiture order in respect of tainted property. (2) Except with the leave of the court, an application may only be made under subsection (1) before the end of the relevant period (if any) in relation to the conviction. (3) A court must not grant leave under subsection (2) unless it is satisfied that— (a) the property to which the application relates was derived, realised or identified only after the end of the relevant period; or (b) necessary evidence became available only after the end of the relevant period; or (c) it is otherwise in the interests of justice to do so. (4) The applicant must give written notice of the application— S. 32(4)(a) amended by Nos 63/2003 s. 11, 68/2009 s. 97(Sch. item 23.23(b)). (a) to the accused, unless the accused has absconded; and (b) to any other person whom the applicant has reason to believe has an interest in the property. (5) The court may waive the requirement under subsection (4) to give notice if—
S. 35(1)(b)(ii) amended by Nos 87/2004 s. 22(1)(h), 68/2009 s. 97(Sch. item 23.28(b)). (ii) the charging or proposed charging of the accused with that offence or a related offence that is a Schedule 2 offence; and (c) the restrained property is not the subject of an exclusion order under section 22— the restrained property, subject to any declaration under section 23, is forfeited to the Minister on the expiry of 60 days after— s. 35 (d) the making of the restraining order; or S. 35(1)(e) amended by No. 68/2009 s. 97(Sch. item 23.28(a)). (e) the conviction of the accused— whichever is later. S. 35(2) amended by No. 43/1998 s. 36(d). (2) If, within the period of 60 days referred to in subsection (1), an application has been made for an exclusion order under section 22 in respect of restrained property, the property is forfeited to the Minister— (a) if the application is refused or dismissed, at the end of the period during which the person may appeal against the refusal or dismissal or, if such an appeal is lodged, when the appeal is abandoned or finally determined without the order having been made; or (b) if the application is withdrawn or struck out, on that withdrawal or striking out. S. 35(3) amended by No. 87/2004 s. 22(1)(h). (3) If a person is, by reason of section 4(1)(d), deemed to have been convicted of a Schedule 2 offence, the DPP may apply to the Supreme Court or the County Court for an order declaring the date of conviction for the purposes of this section.
S. 36(2) inserted by No. 63/2003 s. 14. (2) An applicant under this section for a declaration that property has been forfeited is not required to give notice of the application to any person who has an interest in the property. Note to s. 36 inserted by No. 42/2007 s. 18(Sch. item 11). Note Section 14 provides that a restraining order may be made in respect of property or an interest in property. s. 36C _______________ 37 Application for civil forfeiture order S. 37(1AA) inserted by No. 87/2004 s. 15(1). s. 37 (1AA) In this section— the Court means the Supreme Court or the County Court. S. 37(1) substituted by No. 87/2004 s. 15(1). (1) If a restraining order is in force under section 18(2) in respect of property, the DPP or a prescribed person, or a person belonging to a prescribed class of persons, may apply to the Court for a civil forfeiture order in respect of the property. S. 37(2) repealed by No. 87/2004 s. 15(1). * * * * * S. 37(3) amended by No. 63/2003 s. 15, repealed by No. 87/2004 s. 15(1). * * * * *
S. 41(2)(d) repealed by No. 74/2010 s. 37(Sch. item 1(b)). * * * * * S. 41(3) amended by No. 43/1998 s. 36(i). (3) If registrable property is forfeited to the Minister under a forfeiture order or a civil forfeiture order or by automatic forfeiture under section 35— S. 41(3)(a) amended by No. 43/1998 s. 36(i). (a) the property vests in equity in the Minister but does not vest in the Minister at law until the applicable registration requirements have been complied with; and S. 41(3)(b) amended by No. 43/1998 s. 36(i). (b) the Minister is entitled to be registered as owner of the property; and S. 41(3)(c) amended by No. 43/1998 s. 36(h)(i). (c) the Minister or a prescribed person authorised by the Minister for the purposes of this subsection has power to do, or to authorise the doing of, anything necessary or convenient to obtain the registration of the Minister as owner, including but not limited to, the execution of any instrument required to be executed by a person transferring an interest in property of that kind. S. 41(4) amended by No. 43/1998 s. 36(h)(i). (4) If registrable property has been forfeited to the Minister under a forfeiture order or a civil forfeiture order or by automatic forfeiture under section 35, the Minister or the DPP or a prescribed person authorised by the Minister for the purposes of this subsection has power to do anything necessary or convenient to give notice of, or otherwise protect, the equitable interest of the Minister in the property. 42 Power to discharge mortgage or charge s. 42 (1) If the Supreme Court or the County Court is satisfied, on application by—
S. 52(1)(a) amended by No. 42/2007 s. 11(2). (a) if the court is not satisfied that the property in which the applicant claims an interest is not tainted property or derived property but is satisfied that— S. 52(1)(a)(i) amended by No. 87/2004 s. 22(1)(m). (i) the applicant was not, in any way, involved in the commission of the Schedule 2 offence; and S. 52(1)(a)(ii) amended by Nos 87/2004 s. 22(1)(m), 68/2009 s. 97(Sch. item 23.40). (ii) where the applicant acquired the interest before the commission of the Schedule 2 offence, the applicant did not know that the accused would use, or intended to use, the property in, or in connection with, the commission of the Schedule 2 offence; and S. 52(1)(a)(iii) amended by Nos 87/2004 s. 22(1)(m), 42/2007 s. 11(2). (iii) where the applicant acquired the interest at the time of or after the commission of the Schedule 2 offence, the applicant acquired the interest without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was tainted property or derived property; and S. 52(1)(a)(iv) substituted by No. 42/2007 s. 11(3), amended by No. 68/2009 s. 97(Sch. item 23.40). (iv) the applicant's interest in the property was not subject to the effective control of the accused on the earlier of the date that the accused was charged with the Schedule 2 offence or the date that the restraining order was made in relation to the property; and S. 52(1)(a)(v) amended by No. 68/2009 s. 97(Sch. item 23.40). (v) where the applicant acquired the interest from the accused, directly or indirectly, that it was acquired for sufficient consideration; or S. 52(1)(b) amended by No. 42/2007 s. 11(2). (b) if the court is satisfied that the property is not tainted property or derived property and that—
S. 54(1)(d) substituted by No. 42/2007 s. 12(2). (d) the applicant's interest in the property was not subject to the effective control of the person who is suspected to have committed the Schedule 2 offence on the earlier of the date on which that person was charged with the Schedule 2 offence (if such a charge was filed) or the date that the restraining order was made in relation to the property; and s. 54 (e) where the applicant acquired the interest, directly or indirectly, from the person who is suspected to have committed the Schedule 2 offence, that it was acquired for sufficient consideration. S. 54(2) amended by No. 87/2004 s. 18(6). (2) If the Court makes an order under subsection (1), it may also make an order declaring the nature, extent and value of the applicant's interest in the property. _______________ 55 Application to Minister for return of property or payment of value s. 55 (1) If— (a) a forfeiture order is discharged in the manner referred to in section 46(1)(a), (b) or (c); or (b) automatic forfeiture is discharged in the manner referred to in section 47(1)(a), (b) or (c); or (c) a civil forfeiture order is discharged in the manner referred to in section 48(1)(a)— any person who claims to have had an interest in the property immediately before it was forfeited may apply in writing to the Minister for the transfer of the interest to the person.
(2) If a court makes an exclusion order under section 50(1), 52(1) or 54(1) in respect of an interest in property, the applicant for the exclusion order may apply in writing to the Minister for the transfer of the interest to the person. (3) On receipt of an application under subsection (1) or (2), the Minister may transfer the interest to the applicant if satisfied that— (a) the interest was vested in the applicant immediately before the forfeiture; and S. 55(3)(b) amended by No. 43/1998 s. 36(o). (b) the interest is still vested in the Minister; and (c) there is no reason why the interest should not be transferred to the applicant. S. 55(4) amended by No. 87/2004 s. 22(2)(a). (4) The transfer of an interest to a person under this section may, if the Minister thinks fit, be conditional on the payment, within 6 months after notice of the condition is given to the applicant, of any amount referred to in section 14(4) or 45 paid to the person in relation to that forfeiture order. S. 55(5) amended by No. 43/1998 s. 36(o). (5) If a person fails to make a payment referred to in subsection (4) within 6 months after receiving notice of the condition, the Minister must not transfer the interest to the person but subsection (6) applies as if the interest were no longer vested in the Minister. S. 55(6) amended by No. 43/1998 s. 36(o). (6) If a person applies under subsection (1) or (2) in respect of an interest in property, which is no longer vested in the Minister and the Minister is satisfied that the interest was vested in the applicant immediately before the forfeiture— (a) if an order has not been made under section 50(2), 52(2) or 54(2), the Minister may make
(1A) Property forfeited to the Minister under this Act must not be taken into account in determining whether a pecuniary penalty order is discharged. S. 62(2) amended by No. 43/1998 s. 39(c). (2) If a pecuniary penalty order is registered under the Service and Execution of Process Act 1992 of the Commonwealth, notice of the discharge of that order must be given as prescribed by the rules of the Supreme Court. Pt 8 Div. 2 (Heading) substituted by No. 87/2004 s. 19(e). Division 2—Pecuniary penalty order based on finding of guilt on civil standard 63 Application for pecuniary penalty order S. 63(1) amended by Nos 87/2004 s. 19(f), 68/2009 s. 97(Sch. item 23.47). s. 63 (1) If an accused has been charged with a Schedule 2 offence, the DPP or a prescribed person, or a person belonging to a prescribed class of persons, may apply to the Supreme Court for a pecuniary penalty order. S. 63(2) amended by No. 87/2004 s. 19(g). (2) For the purposes of this Division, it does not matter that the charge has been withdrawn or finally determined. (3) If a restraining order is in force under Part 2, the application under subsection (1) may only be made within the period of 7 days after the making of the restraining order, except with the leave of the Supreme Court. S. 63(3A) inserted by No. 43/1998 s. 22(1). (3A) If a charge has been withdrawn or finally determined, the application under subsection (1) may only be made within the period of 6 months after the day on which the charge was withdrawn or finally determined, except with the leave of the Supreme Court. S. 63(4) amended by No. 43/1998 s. 22(2)(a). (4) The Supreme Court must not grant leave under subsection (3) or (3A) unless it is satisfied that—
S. 64(4) amended by Nos 54/2000 s. 25(2), 87/2004 s. 19(i). (4) The Supreme Court must give priority to an application made under section 84 (restitution order) or Division 2 of Part 4 (compensation order) of the Sentencing Act 1991 in relation to the same Schedule 2 offence and, accordingly, may defer the determination of an application under section 63(1) until the application under the Sentencing Act 1991 has been determined. S. 64(5) amended by Nos 43/1998 s. 23, 87/2004 s. 19(i), 68/2009 s. 97(Sch. item 23.51). (5) The setting aside of a conviction for a Schedule 2 offence does not affect the validity of a pecuniary penalty order under this Division that was made before or after the conviction was set aside and was based on that offence. S. 64(6) amended by No. 68/2009 s. 97(Sch. item 23.52). (6) The making of a pecuniary penalty order under this Division against an accused in relation to an offence does not prevent the making of a civil forfeiture order in relation to the same offence. 65 Consent orders s. 65 (1) The Supreme Court may make a pecuniary penalty order under this Division by consent of the applicant and the respondent. S. 65(2) amended by Nos 43/1998 s. 36(v), 42/2007 s. 18(Sch. item 18). (2) A law enforcement agency or an applicant for a pecuniary penalty order must not enter into an agreement to settle any matter in respect of which a pecuniary penalty order could be made under this Division and which involves the payment of money or the transfer of any interest in property to the State or the Minister except— (a) by way of a consent order under subsection (1); or (b) as restitution of stolen property; or (c) as compensation for loss or destruction of, or damage to, property; or (d) with the approval of the Supreme Court.
(iii) a forfeiture order, an interstate forfeiture order, a pecuniary penalty order or an interstate pecuniary penalty order under the Crimes (Confiscation of Profits) Act 1986 already applies to the property; or (b) in the case of expenditure— (i) the funds which were expended were lawfully acquired and were not derived or realised, directly or indirectly, by any person from any unlawful activity; or (ii) the expenditure was made to satisfy a pecuniary penalty order or an interstate pecuniary penalty order under this Act or the Crimes (Confiscation of Profits) Act 1986. Note to s. 68 inserted by No. 42/2007 s. 18(Sch. item 20). Note Property is defined as including any interest in property: see section 3(1). S. 69 (Heading) inserted by No. 68/2010 s. 21. 69 Variation of pecuniary penalty order after successful appeal against restitution or compensation order s. 69 S. 69(1) amended by No. 68/2009 s. 97(Sch. item 23.55). (1) If— (a) a court made a pecuniary penalty order under this Part in relation to an offence; and S. 69(1)(b) amended by No. 68/2009 s. 97(Sch. item 23.55). (b) in assessing the value of the benefits derived, the court took into account the making of a restitution or compensation order under the Sentencing Act 1991 against the accused in relation to the offence; and
(b) if under section 71 a court directed a person to take control of the property, that person— is deemed to be a person mentioned in section 89 of the Transfer of Land Act 1958. 73 Disposal of property obtained to satisfy pecuniary penalty order s. 73 S. 73(1) amended by No. 43/1998 s. 36(y). (1) If property that is not money is obtained by the Minister under a pecuniary penalty order then, subject to subsection (2) and to any direction under subsection (4), the Minister or a prescribed person authorised by the Minister for the purposes of this subsection must, as soon as practicable after the property vests in the Minister, sell or otherwise dispose of the property. S. 73(2) amended by No. 43/1998 s. 36(y). (2) Except with the leave of the court which made the pecuniary penalty order, the Minister must not— (a) dispose of, or otherwise deal with, the property; or (b) authorise any other person or body to dispose of, or otherwise deal with, the property— before the end of the appeal period. (3) For the purposes of subsection (2), the appeal period ends when an appeal may no longer be lodged against either the pecuniary penalty order or the conviction in reliance on which the order was made or, if such an appeal is lodged, when the appeal is abandoned or finally determined. S. 73(4) amended by No. 43/1998 s. 39(e). (4) If property is obtained under a pecuniary penalty order, the Minister, or a prescribed person
_______________ 98 Order for examination s. 98 S. 98(1) substituted by No. 43/1998 s. 27. (1) In this section, relevant person means the DPP or a prescribed person or a person belonging to a prescribed class of persons. S. 98(2) substituted by No. 63/2003 s. 28. (2) If a court is satisfied that— S. 98(2)(a) substituted by No. 87/2004 s. 20(1), amended by No. 68/2009 s. 97(Sch. item 23.62(a)). (a) an accused has been charged with or convicted of a Schedule 1 offence or a Schedule 2 offence or a court has made a restraining order against property under section 18 in relation to a Schedule 2 offence; and (b) it is appropriate to make an order under this section— the court may, on application by a relevant person, make an order for the examination before the court of any person concerning— S. 98(2)(c) amended by Nos 87/2004 s. 20(2)(a), 68/2009 s. 97(Sch. item 23.62(b)). (c) the affairs of the accused or any other person, including the nature and location of— S. 98(2)(c)(i) amended by Nos 87/2004 s. 20(2)(b), 68/2009 s. 97(Sch. item 23.62(b)). (i) any property in which the accused or person has or may have an interest; or S. 98(2)(c)(ii) amended by No. 42/2007 s. 15. (ii) any property which the applicant for the order believes on reasonable grounds to
Division 1—Production orders 100 Application for production order S. 100(1) amended by No. 87/2004 s. 22(2)(h). s. 100 (1) In this section, relevant offence means a Schedule 1 offence or a Schedule 2 offence. (2) If a person has been convicted of a relevant offence or a member of the police force believes that a person has committed a relevant offence, the member may, without notice, apply to a court for a production order against that person or another person. (3) An application under subsection (2) must be supported by an affidavit of the applicant— (a) stating, if a person has not been convicted of a relevant offence, that he or she believes that a person has committed a relevant offence; and (b) stating that he or she believes that the person against whom the order is sought has possession or control of a property-tracking document or property-tracking documents in relation to that relevant offence; and (c) setting out the grounds on which the applicant holds those beliefs. (4) The court hearing an application under subsection (2) may require the applicant to give it any additional information that it requires concerning the grounds on which the order is sought. (5) An application under subsection (2) must be heard in closed court.
(c) there are reasonable grounds to suspect that it would be unlikely that any production order made in respect of the document would be complied with; or (d) the investigation might be seriously prejudiced if the applicant did not gain immediate access to the document without notice to any person. (3) If the applicant's affidavit— (a) states that he or she believes that— (i) the person who was convicted of the offence, or is believed to have committed the offence, derived a benefit in relation to the offence, having regard to section 67 or 68 (as the case may be); and (ii) property specified in the application— (A) is subject to the effective control of that person; or (B) was the subject of a gift from that person; and (b) sets out the grounds on which the applicant holds those beliefs— s. 110 the magistrate or judge may if he or she considers that, having regard to the matters contained in that affidavit and to any other sworn evidence before him or her, there are reasonable grounds for doing so, treat any document relevant to identifying, locating or quantifying that property as a document in relation to the offence.
of that amount by taking out a charge over that land. (4) A charge taken out by Victoria Legal Aid is to be for the benefit of the Legal Aid Fund. s. 143 (5) Sections 47B, 47C, 47D and 47E of the Legal Aid Act 1978 apply to a charge over land referred to in this section as if it were a charge to which section 47A(2) of that Act applies. S. 143(6) amended by No. 43/1998 ss 36(za), 39(h). (6) If an amount owed to Victoria Legal Aid under this section is not paid and Victoria Legal Aid is unable, by enforcing a charge to which subsection (3) applies or otherwise, to recover that amount, then the State must pay that amount to Victoria Legal Aid to the value of any property forfeited to the Minister or the amount of any penalty paid to the State (less conversion costs and any amount paid under section 31) in relation to the offence in reliance on which the restraining order was made and the Consolidated Fund is, to the necessary extent, appropriated accordingly. S. 143A inserted by No. 63/2003 s. 34. 143A Delegation s. 143A The Secretary, by instrument, may delegate to any prescribed person any power or function of the Secretary under Division 6 of Part 13. 144 Operation of other laws not affected Nothing in this Act limits or restricts the operation of any other law providing for the forfeiture of property. S. 144A inserted by No. 79/2006 s. 13. 144A Validation (1) A restraining order made on or before 26 September 2005 is not invalid only because it is directed to a named person and is deemed to