Therapeutic Goods and Other Legislation Amendment (Vaping Reforms) Act 2024 (50 of 2024)

Schedule 1   Amendment of the Therapeutic Goods Act 1989

Part 4   Enforceable directions and forfeiture

Therapeutic Goods Act 1989

54   After Part 6-2

Insert:

Part 6-2A - Forfeiture of things seized

52AAA Forfeiture of things seized under search warrant in certain circumstances

(1) If:

(a) an authorised person seizes a thing under a warrant issued under section 50; and

(b) the Secretary believes, on reasonable grounds, that:

(i) the thing has been imported, manufactured or supplied in contravention of this Act or an instrument made under this Act; or

(ii) the thing has been in the possession, custody or control of a person in contravention of this Act or an instrument made under this Act; or

(iii) a requirement under this Act, or an instrument made under this Act, has not been complied with in relation to the thing;

the thing is forfeited to the Commonwealth.

Notice of forfeiture

(2) The Secretary must give a written notice (a forfeiture notice ) in accordance with subsection (3) to:

(a) the owner of the thing; or

(b) if the owner cannot be identified after reasonable inquiry - the person who had possession, custody or control of the thing immediately before it was seized.

(3) The forfeiture notice must identify the thing and state the following:

(a) the day the thing was seized;

(b) that the thing was seized under a warrant issued under section 50 of this Act and the grounds on which it was seized;

(c) that the thing is forfeited to the Commonwealth;

(d) that the owner of the thing, or the person who had possession, custody or control of the thing immediately before it was seized, may, within 2 months beginning on the day the forfeiture notice is given, commence proceedings against the Commonwealth in a court of competent jurisdiction for a declaration that the thing is not forfeited to the Commonwealth.

Proceedings may be commenced for declaration that thing is not forfeited to the Commonwealth

(4) The owner of the thing, or the person who had possession, custody or control of the thing immediately before it was seized, may, subject to subsection (5), commence proceedings in a court of competent jurisdiction for a declaration that the thing is not forfeited to the Commonwealth.

(5) Proceedings:

(a) may be commenced under subsection (4) even if the forfeiture notice required to be given under subsection (2) in relation to the thing has not yet been given; and

(b) may only be commenced before the end of the period of 2 months beginning on the day the forfeiture notice is given.

Secretary may retain or dispose of forfeited thing

(6) If:

(a) the owner of the thing, or the person who had possession, custody or control of the thing immediately before it was seized, does not, within the period of 2 months beginning on the day the forfeiture notice was given, commence proceedings against the Commonwealth for a declaration that the thing is not forfeited to the Commonwealth; or

(b) the owner of the thing, or the person who had possession, custody or control of the thing immediately before it was seized, commences such proceedings within that 2 month period, but at the end of the proceedings (including an appeal to a court in relation to the proceedings), the court has not made a declaration that the thing is not forfeited to the Commonwealth;

then:

(c) the thing is condemned as forfeited to the Commonwealth; and

(d) the Secretary may cause notice of the forfeiture of the thing to be published on the Department's website; and

(e) the Secretary may:

(i) retain the thing for the purpose of proceedings in respect of which the thing may afford evidence; or

(ii) cause the thing to be disposed of in such manner as the Secretary directs.

Note: See also section 54 (offences and forfeiture).

52AAB Return or retention of thing declared not to be forfeited to the Commonwealth

(1) This section applies in relation to a thing if:

(a) the thing was forfeited to the Commonwealth under subsection 52AAA(1); and

(b) a court has made a declaration that the thing is not forfeited to the Commonwealth under that subsection.

(2) Sections 48H and 48J do not apply in relation to the thing.

(3) At the end of 120 days after the declaration referred to in paragraph (1)(b) was made, an authorised person must take reasonable steps to return the thing to the person from whom it was seized unless:

(a) proceedings in respect of which the thing may afford evidence were commenced before the end of the 120 days and have not been completed (including an appeal to a court in relation to those proceedings); or

(b) an authorised person may retain the thing because of an order under subsection (6); or

(c) an authorised person is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) to retain, destroy or dispose of the thing.

(4) The thing may be returned under subsection (3) either unconditionally or on such terms and conditions as the Secretary sees fit.

(5) The Secretary may apply to an issuing officer for an order that an authorised person may retain the thing for a further period. The application must be made:

(a) before the end of 120 days after the declaration referred to in paragraph (1)(b) was made; or

(b) if an order has been made under subsection (6) - before the end of the period specified in the most recent order made under that subsection.

(6) If the issuing officer is satisfied that it is necessary for an authorised person to continue to retain the thing:

(a) for the purposes of an investigation as to whether an offence against this Act has been committed; or

(b) to enable evidence of an offence against this Act to be secured for the purposes of a prosecution; or

(c) for the purposes of an investigation as to whether a civil penalty provision has been contravened; or

(d) to enable evidence of a contravention of a civil penalty provision to be secured for the purposes of civil proceedings;

the issuing officer may order that an authorised person may retain the thing for a period (not exceeding 3 years) specified in the order.

(7) Before making an application under subsection (5), the Secretary must:

(a) take reasonable steps to discover who has an interest in the retention of the thing; and

(b) if it is practicable to do so, notify each person who the Secretary believes to have such an interest of the proposed application.