Customs Act 1901

PART XIII - PENAL PROVISIONS  

Division 3 - Recovery of Pecuniary Penalties for Dealings in Narcotic Goods  

SECTION 243E   COURT MAY MAKE RESTRAINING ORDER AGAINST PROPERTY  

243E(1)    

Where the Minister, the Commissioner of Police, the Comptroller-General of Customs or the Director of Public Prosecutions has instituted a proceeding under section 243B for an order that a person (in this section referred to as the " defendant " ) pay a pecuniary penalty in relation to a particular prescribed narcotics dealing, or in relation to prescribed narcotics dealings during a particular period, the Minister, the Commissioner of Police, the Comptroller-General of Customs or the Director of Public Prosecutions may make application to the Court, ex parte , for an order under paragraph (2)(c) against one or more of the following:

(a) specified property of the defendant;

(b) all the property of the defendant (including property acquired after the making of the order);

(c) (Omitted by No 123 of 1991)

(d) all the property of the defendant (including property acquired after the making of the order) other than specified property;

(e) specified property of a person other than the defendant.

243E(1A)    
The application under subsection (1) may be made:

(a) where the Court makes the order under section 243B - at any time before the liability of the defendant in respect of the pecuniary penalty has been discharged; or

(b) in any other case - at any time before the proceeding under section 243B is finally disposed of.

243E(2)    
Where -

(a) an application under subsection (1) is supported by -

(i) an affidavit of a police officer or an officer of Customs stating that he or she believes that -

(A) the defendant has engaged in the prescribed narcotics dealing to which the proceeding under section 243B relates, or in prescribed narcotics dealings during the period to which that proceeding relates; and

(B) benefits were derived by the defendant by reason of the defendant's having engaged in that prescribed narcotics dealing, or in prescribed narcotics dealings during that period, as the case may be,

and setting out the grounds on which he or she holds those beliefs; and

(ii) if the application seeks an order against specified property of the defendant - an affidavit of a police officer or an officer of Customs stating that he or she believes that the property is the property of the defendant and setting out the grounds on which he or she holds that belief; and

(b) the Court considers that, having regard to the matters contained in that affidavit or those affidavits, there are reasonable grounds for holding those beliefs,

the Court -

(c) shall, subject to subsection (2A), make an order:

(i) directing that the property, or such part of the property as is specified in the order, is not to be disposed of, or otherwise dealt with, by any person, except in such manner and in such circumstances (if any) as are specified in the order; and

(ii) if the Court is satisfied that the circumstances so require - direct the Official Trustee to take custody and control of the property, or such part of the property as is specified in the order; and

(d) may, subject to subsection (3), include in the order such provision (if any) in relation to the operation of the order as the Court thinks fit.

243E(2A)    
Where an application under subsection (1) seeks an order under paragraph (2)(c) against specified property of a person other than the defendant, the Court shall not make the order unless:

(a) the application is supported by an affidavit of a police officer or an officer of Customs stating that the officer believes that the property is subject to the effective control of the defendant; and

(b) the Court considers that, having regard to the matters contained in that affidavit, there are reasonable grounds for holding that belief.

243E(3)    
Paragraph (2)(d) does not authorize the Court to include in the order a provision postponing the operation of the order.

243E(4)    
Without limiting the power of the Court under paragraph (2)(d), the order against property -

(a) may set out conditions subject to which the order is to apply to all of that property, or to a specified part of that property;

(b) may make provision for a review of the operation of the order by the Court; and

(c) may make provision for meeting the reasonable living and business expenses of the defendant out of that property, or out of a specified part of that property.

243E(4A)    
The Court shall not make provision of the kind referred to in paragraph (4)(c) unless it is satisfied that the defendant cannot meet the expenses concerned out of property that is not subject to the order.

243E(5)    
The Court may refuse to make the order if the Commonwealth refuses or fails to give to the Court such undertakings as the Court deems appropriate with respect to the payment of damages or costs, or both, in relation to the making and operation of the order.

243E(6)    

For the purposes of an application under subsection (1), the Minister, the Commissioner of Police, the Comptroller-General of Customs or the Director of Public Prosecutions may, on behalf of the Commonwealth, give to the Court such undertakings with respect to the payment of damages or costs, or both, as are required by the Court.

243E(7)    
Notwithstanding anything contained in the Bankruptcy Act 1966 , moneys that have come into the possession, or under the control, of the Official Trustee in accordance with an order made under subsection (2) shall not be paid into the Common Investment Fund established in pursuance of section 20B of that Act.

243E(8)    
Where the Official Trustee is given a direction under subparagraph (2)(c)(ii) in relation to property, the Official Trustee may do anything that is reasonably necessary for the purpose of preserving the property including, without limiting the generality of this:

(a) becoming a party to any civil proceedings affecting the property;

(b) ensuring that the property is insured;

(c) if the property consists, wholly or partly, of securities or investments - realising or otherwise dealing with the securities or investments; and

(d) if the property consists, wholly or partly, of a business:

(i) employing, or terminating the employment of, persons in the business; and

(ii) doing any other thing that is necessary or convenient for carrying on the business on a sound commercial basis.

243E(9)    
Where the Official Trustee is given a direction under subparagraph (2)(c)(ii) in relation to shares in a company, the Official Trustee is entitled:

(a) to exercise the rights attaching to the shares as if it were the registered holder of the shares; and

(b) to do so to the exclusion of the registered holder.

243E(10)    
Neither paragraph (8)(c) nor subsection (9) limits the generality of the other.

243E(11)    
In proceedings dealing with an application for an order under paragraph (2)(c), a witness shall not be required to answer a question or to produce a document if the Court is satisfied that the answering of the question or the production of the document may prejudice the investigation of, or the prosecution of a person for, an offence.