Crimes Act 1914

Part IE - Forfeiture of child abuse material  

Division 3 - Forfeiture by court order on application  

SECTION 23ZD   Forfeiture of material by court order on application  

Court to order forfeiture on application if offence committed

(1)    
If, on application by the Director of Public Prosecutions to a court of a State or Territory, the court is satisfied that a Commonwealth child sex offence has been committed or that a person is or has been convicted of a Commonwealth child sex offence (by the court or another court), the court must order the forfeiture to the Commonwealth of all the things that the court is satisfied:

(a) are forfeitable things derived from, or used in connection with, the commission of the offence; and

(b) have not already become property of the Commonwealth.

Note 1:

It does not matter whether the Director of Public Prosecutions makes the application on his or her own initiative or because of section 23ZB .

Note 2:

It does not matter whether the court is satisfied in the course of criminal proceedings or civil proceedings that the Commonwealth child sex offence has been committed.

Notice of application

(2)    
The Director of Public Prosecutions must give written notice of the application to anyone:

(a) who claims to own, or have a right to possess, a thing covered by the application; or

(b) whom the Director reasonably believes would be directly or indirectly affected by the proposed forfeiture.

Interim orders

(3)    
At any time after the application is made to the court, it may make any interim orders it considers appropriate (such as orders relating to the delivery or retention of things pending the court ' s decision on the application, and orders relating to the making and provision of copies of things).

Circumstances that do not prevent court ordering forfeiture

(4)    
An order under subsection (1):

(a) may be made even if a person entitled to be given notice of the application fails to appear at the hearing of the application; and

(b) need not be based on a finding as to the commission of a particular Commonwealth child sex offence; and

(c) can be based on a finding that some such offence was committed; and

(d) need not be based on a finding that a particular person committed a Commonwealth child sex offence.

Court may order compensation for forfeiture

(5)    
The court may order the Commonwealth to pay a specified reasonable amount of compensation to a person who owns, has a right to possess or has other property in a thing whose forfeiture the court orders if the thing is a computer, data storage device or other electronic equipment and the court is satisfied that:

(a) the person has appeared at the hearing of the application; and

(b) the person did not commit, is not and has not been convicted (by the court or another court) of, and has not been found by another court in civil proceedings to have committed, the Commonwealth child sex offence; and

(c) the person is not the subject of proceedings in another court relating to the Commonwealth child sex offence and has not been the subject of such proceedings in connection with which an appeal may still be lodged as of right; and

(d) the person is not the subject of an investigation into a Commonwealth child sex offence of which the thing provides evidence.

Standard of proof for forfeiture and compensation orders

(6)    
The standard of proof for subsections (1) and (5) is the balance of probabilities.