Crimes Act 1914

Part IE - Forfeiture of child abuse material  

Division 2 - Forfeiture by operation of law after notice is given  

SECTION 23ZB   Forfeiture of material by operation of law  

Application

(1)    
This section applies if a constable reasonably believes that the forfeitable thing is derived from, or was used in connection with, the commission of a Commonwealth child sex offence.

Power to give forfeiture notice

(2)    
The constable may give a notice (the forfeiture notice ) described in subsection (3) to:

(a) a person who owns the forfeitable thing (either alone or with other persons); or

(b) if the constable is unable, after reasonable inquiry, to identify such a person:

(i) the person who possesses the thing; or

(ii) if the thing has been seized under a law of the Commonwealth, a State, a Territory or a foreign country - the person who would possess it apart from that seizure.

Content of forfeiture notice

(3)    
The forfeiture notice is a notice that:

(a) identifies the forfeitable thing; and

(b) states the constable ' s belief that the thing is derived from, or was used in connection with, the commission of a Commonwealth child sex offence; and

(c) states that the thing will be forfeited to the Commonwealth 30 days after the notice is given, unless any of the following persons object to the forfeiture by written notice given before the end of that period to the head of the police force that includes the constable:

(i) a person who owns the thing (either alone or with other persons);

(ii) a person who has a right to possess the thing; and

(d) explains the circumstances in which, under section 23ZC , a person may be given a copy of parts of the thing, or of data contained in the thing, on request to the head of the police force made within 30 days after the notice is given; and

(e) explains the effect of forfeiture of the thing; and

(f) explains the circumstances in which compensation is payable in connection with forfeiture of the thing; and

(g) requests a person claiming compensation for forfeiture of the thing to notify the head of the police force of the claim.

Giving copy of forfeiture notice to others affected

(4)    
If the constable gives the forfeiture notice to a person described in subsection (2), the constable may also give a copy of the notice to anyone whom the constable reasonably believes will be directly or indirectly affected by the proposed forfeiture of the forfeitable thing.

Effect of giving forfeiture notice

(5)    
If there is not an objection described in paragraph (3)(c), the forfeitable thing is forfeited to the Commonwealth (by force of this subsection) at the end of the period described in that paragraph.

(6)    
If there is an objection described in paragraph (3)(c) but the head of the police force that includes the constable considers that the forfeitable thing should be forfeited to the Commonwealth despite the objection:

(a) the head of the police force must instruct the Director of Public Prosecutions to apply for an order under section 23ZD for the forfeiture of the thing; and

(b) the Director must make the application.

Objection or lack of one does not affect prosecution

(7)    
Evidence of the fact that a person described in paragraph (3)(c) objected or did not object as described in that paragraph is not admissible against the person in a prosecution of the person for a Commonwealth child sex offence.