Customs Act 1901

PART XIII - PENAL PROVISIONS  

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

SECTION 243G   OFFICIAL TRUSTEE TO DISCHARGE PECUNIARY PENALTY  

243G(1)    
Where:

(a) the Court makes an order under section 243B that a person pay a pecuniary penalty in relation to a particular prescribed narcotics dealing or in relation to prescribed narcotics dealings during a particular period; and

(b) at the time when the order is made, property is subject to a restraining order made, in reliance on the prescribed narcotics dealing or prescribed narcotics dealings, against:

(i) property of the person; or

(ii) property of another person in relation to which an order under subsection 243CA(2) is made;

the Court may include in the order under section 243B a direction to the Official Trustee to pay the Commonwealth, in accordance with this section, an amount equal to the penalty amount out of that property.

243G(2)    
Where:

(a) the Court makes an order under section 243B for a person to pay a pecuniary penalty in relation to a prescribed narcotics dealing or prescribed narcotics dealings during a particular period; and

(b) a restraining order is subsequently made against:

(i) property of the person; or

(ii) property of another person in relation to which an order under subsection 243CA(2) is made;

in reliance on the prescribed narcotics dealing or prescribed narcotics dealings;

the Court may include in the restraining order a direction to the Official Trustee to pay the Commonwealth, in accordance with this section, an amount equal to the penalty amount out of that property.

243G(2A)    

If:

(a) the Court has made an order under section 243B that a person pay a pecuniary penalty in relation to a prescribed narcotics dealing or prescribed narcotics dealings during a particular period; and

(b) a restraining order is in force against:

(i) property of the person; or

(ii) property of another person in relation to which an order under subsection 243CA(2) is in force;

the Court may, on application by the Minister, the Commissioner of Police, the Comptroller-General of Customs or the Director of Public Prosecutions, direct the Official Trustee to pay the Commonwealth, in accordance with this section, an amount equal to the penalty amount out of the property.

243G(3)    
For the purposes of enabling the Official Trustee to comply with a direction given by the Court under subsection (1), (2) or (2A), the Court may, in the order in which the direction is given or by a subsequent order:

(a) direct the Official Trustee to sell or otherwise dispose of such of the property that is subject to the restraining order as the Court specifies; and

(b) appoint an officer of the Court or any other person to execute any deed or instrument in the name of a person who owns or has an estate, interest or right in the property and to do any act or thing necessary to give validity and operation to the deed or instrument.

243G(4)    
The execution of the deed or instrument by the person appointed by an order under subsection (3) has the same force and validity as if the deed or instrument had been executed by the person who owned or had the estate, interest or right in the property.

243G(5)    
Where the Official Trustee is given a direction under subsection (1), (2) or (2A) in relation to property, the Official Trustee shall not:

(a) if the property is money - apply the money in accordance with subsection (6) until the end of the appeal period; and

(b) if the property is not money - sell or otherwise dispose of the property until the end of the appeal period.

243G(6)    

Where the Official Trustee is given a direction under subsection (1), (2) or (2A) in relation to property, the Official Trustee shall, as soon as practicable after the end of the appeal period:

(a) if the property is money:

(i) apply the money in payment of the costs, charges, expenses and remuneration, of the kind referred to in subsection 243P(1) , incurred or payable in connection with the restraining order and payable to the Official Trustee under the regulations; and

(ii) subject to subsection (7), credit an amount equal to the remainder of the money to the Confiscated Assets Account as required by section 296 of the Proceeds of Crime Act 2002 ; and

(b) if the property is not money:

(i) sell or otherwise dispose of the property;

(ii) apply the proceeds of the sale or disposition in payment of the costs, charges, expenses and remuneration of the kind referred to in subsection 243P(1) , incurred or payable in connection with the restraining order or the sale or disposition and payable to the Official Trustee under the regulations; and

(iii) subject to subsection (7), credit an amount equal to the remainder of those proceeds to the Confiscated Assets Account as required by section 296 of the Proceeds of Crime Act 2002 .

243G(7)    

Where the amounts to which subparagraph (6)(a)(ii) or (b)(iii) applies exceeds the penalty amount, the Official Trustee must:

(a) credit to the Confiscated Assets Account as required by section 296 of the Proceeds of Crime Act 2002 an amount equal to the penalty amount; and

(b) pay the balance to the person whose property was subject to the restraining order.

243G(8)    

Where the Official Trustee credits, in accordance with a direction under this section, an amount to the Confiscated Assets Account as required by section 296 of the Proceeds of Crime Act 2002 in satisfaction of a person's liability under an order under section 243B, the person's liability under the order shall, to the extent of the payment be deemed to be discharged.

243G(9)    
Where:

(a) a restraining order is made against property in reliance on a particular prescribed narcotics dealing engaged in by the person or prescribed narcotics dealings engaged in by the person during a particular period; and

(b) before or after the restraining order is made, an order under section 243B has been or is made against the person in reliance on the prescribed narcotics dealing or prescribed narcotics dealings;

the appeal period in respect of the property is the period ending:

(c) if the period provided for the lodging of an appeal against the making of the order under section 243B has ended without such an appeal having been lodged - at the end of that period; or

(d) if an appeal against the making of the order under section 243B has been lodged - when the appeal lapses or is finally determined.